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THE  LAW  OE  COPYRIGHT 


TREATISE 


THE  LAW  OF  COPYRIGHT 


BOOKS,  DRAMATIC  AND  MUSICAL  COMPOSITIONS,  LETTERS 
AND  OTHER  MANUSCRIPTS,  ENGRAVINGS  ANT)  SCULPTURE, 

AS   ENACTED   AND   ADMINISTERED   IN 

ENGLAND    AND    AMERICA; 

WITH   SOME 

NOTICES  OF  THE  HISTORY  OF  LITERARY  PROPERTY. 


By  GEORGE   TICKNOR   CURTIS, 

•II 

COUNSELLOR      AT       LAW. 


BOSTON: 

CHARLES   C.  LITTLE   AND   JAMES   BROWN. 

LONDON: 

A.    MAXWELL    AND    SON, 

33  BELL  YARD,  LINCOLN'S   INN. 


MDCCCXLVII. 


Entered  according  to  Act  of  Congress,  in  the  year  1847 

By  George  T.  Curtis,  — 

in  the  Clerk's  Office  of  the  District  Court  for  the  District  of  Massachusetts. 


CM33c 

1S47 


PRINTED    BY    FREEMAN    AND    BOLLES, 
DEV0K8HIBE   STREET. 


.    PHEPACE. 


It  was  originally  my  intention  to  have  treated  the 
kindred  subjects  of  Copyrights  and  Patents  for  Useful 
Inventions,  in  the  same  work.  But  after  having  made 
some  progress  in  both  of  these  topics,  the  fact  that 
very  different  classes  of  persons,  out  of  the  legal  pro- 
fession, are  interested  in  the  two  subjects,  has  led  me 
to  publish  this  portion  of  my  labors,  as  a  distinct 
treatise.  It  will  be  followed,  I  hope,  by  a  work  on  the 
law  of  Patents. 

It  will  be  seen  that  in  discussing  the  various  ques- 
tions involved  in  this  branch  of  the  subject,  I  have  not 
hesitated  to  express  my  o^vn  opinion,  where  the  doctrine 
of  decided  cases  seemed  to  me  to  be  objectionable. 
Writers  of  treatises,  in  the  malaner  of  the  English  bar, 
generally  content  themselves  with  a  dry  abstract  of 
the  decisions,  showing  barely  what  the  law  is.    This  is 


756575 


VI  PREFACE. 

well,  us  far  as  it  goes.  It  is  not  the  province  of  any 
writer  to  make  the  law,  and  he  must  certainly  ^tate 
the  law  as  it  is,  if  he  means  to  have  his  hook  respect- 
ahle  and  respected.  But  while  his  text  should  exhibit 
clearly  the  actual  state  of  the  law,  he  should  never 
forget  that  he  is  dealing  with  principles  ;  that  it  is  his 
task,  to  exhibit  the  doctrine  of  the  law,  which  is  its 
life ;  and  that  unless  he  does  this,  his  work,  however 
accurately  he  may  have  strung  the  cases  together,  will 
be  a  mere  collection  of  husks,  the  shell  without  the 
geiminating  principle  that  lies  wrapt  in  the  meat.  If, 
then,  he  essays  the  task  of  eliminating  the  principle 
of  a  rule  or  a  decision,  tracing  it  in  all  its  bearings  and 
following  it  by  the  thread  of  analogy  into  other  systems 
of  jurisprudence,  in  order  to  ascertain  whether  it  be 
really  part  of  the  general  science,  and  not  a  local  idea, 
he  cannot  avoid  the  expression  of  his  own  opinion,  to 
some  extent.  The  study  of  the  law  is  the  pursuit  of 
truth  ;  and  he  who  undertakes  to  express  and  embody 
such  truth,  must  occasionally  express  his  own  convic- 
tions. 

His  allegiance  to  the  science  which  he  serves,  re- 
quires him  to  examine  critically  every  recorded  pre- 
cedent, and  to  dissent,  if  dissent  be  needful ;  not  as  if 
he  were  ambitious  to  be  regarded  as  an  authority ;  but 
in  the  way  of  suggesting  to  those  whose  high  function 


PREFACE.  VU 


it  is  to  revise  and  declare  the  law,  the  means  of  aniving 
at  more  correct  results. 

With  this  view,  I  have  introduced  into  this  work  a 
discussion  on  the  general  doctrine  of  the  English  cases 
in  relation  to  abridgments,  which  I  consider  contrary 
to  principle.  Should  my  observations  induce  any  tri- 
bunal to  reexamine  that  doctrine,  they  will  not  have 
been  published  in  vain. 

It  did  not  fall  within  the  scope  of  this  work,  to  dis- 
cuss the  reasonableness  and  justice  of  an  international 
copyiight.  As  between  England  and  the  United  States 
I  do  not  see  how  there  can  well  be  two  opinions  upon 
the  desu-ableness  of  such  an  arrangement.  The  injustice 
of  the  present  state  of  things  to  authors,  especially  in 
my  own  profession,  is  palpable  and  flagrant.  The  ma- 
terials for  an  argument  upon  this  question,  which  will 
be  incapable  of  being  answered,  are  fast  accumulating, 
in  the  numerous  proofs  of  mutual  advantages  obtained 
by  those  publishers  in  both  countries,  who  have  effected 
an-angements  for  the  exchange  and  sale  of  their  re- 
spective publications.  These  arrangements,  however, 
rest  upon  no  other  security  tlian  tlie  courtesy  of  "the 
trade,"  and  can  never  effectually  answer  the  purpose  of 
a  law  securing  the  profits  on  American  books  in  En- 
gland and  on  Enolish  books  in  the  United  States.  But 
this  is  not  the  place  to  enter  upon  the  discussion  of  this 


Vm  PREFACE. 

interesting  topic.  I  can  only  express  the  hope  of  seeing 
the  argument  at  no  distant  day  presented  by  some 
one,  who  ^vill  do  justice  to  its  great  importance.  But 
I  could  not  dismiss  this  work  from  my  hands,  without 
avowing  myself  an  advocate  of  an  international  copy- 
right, ])oth  upon  grounds  of  general  policy,  and  of 
justice  to  authors. 

Boston,  October,  1847. 


INDEX   OF   CASES   CITED 


P.ige. 

A. 

Abernethy  v.  Hutchinson  102 

Anonymous,  (Lofft's  R.)     191,  2f)7 
Atkins's  Case  40,  126 

B. 

Bach  V.  Longman  108,  135 

Bailey  r.  Taylor  177,319 

Barfield  v.  Nicholson  228,  260 

Barnett  v.  Glassop  221 

Baskelt  v.  The    University  of 

Cambridge  49,  117,  120,  127 
V.  Cunningham  49,  127 


198, 306 

110 

191,  268,  325 

245,246,324 

135 

146 

114,202 


Beck  ford  v.  Hood 
Bell  V.  Locke 

V.  Walker 

V.  Whitehead 

Bentley  r.  Foster 
Binns  v.  Woodruff 
Blackwell  v.  Harper 
Bramhall  l'.  Halcombe  244,272,316 
Brandreth  v.  Lance  93 

Brooks  t'.  Cock  202 

Barnett  v.  Chetwood  189,  291 

Butterworth  u.  Robinson     132,  191, 
268, 325 
Byron  v.  Johnson  299 


C. 


Campbell  v.  Scott  243, 251,  277, 321 
Carnan  v.  Bowles  234, 254, 256,  277, 

321,  325 
Gary  v.  Fadcn  175,  25 1 
V.  Longman        175,  254,  250, 

258,  264 


Page. 

Gary  v.  Kearsley  224,  241,254,  256 
Chappel  V.  Purday       lo5,  136,  138 
Clayton  v.  Stone 
Clementi  v.  Goulding 

V.  Walker 

Colburn  r.  Simms 
Coleman  v.  Walthen 
Crutwell  V.  Lye 
Cumberland  v.  Blanche 


108 
107 
108, 138,  221 
328,  329 
104,  300 
110,294 
140, 232 


D. 


D'AImaine  v.  Boosey  135,  136,  138, 
281,  282,  301 
De  Berenger  v.  Wheble  115,  301  302 
Denis  v.  LeClerc  94 

Dodsley  v.  Kinnersley  191,  246,  267 
Donaldson  v.  Becket  58,  84,  159 
DuBost  V.  Beresford  115,164 

Duke  of  Queensbury  v.  Sheb- 
beare  52 


E. 


Emerson  v.  Davies  173,238, 254, 258, 
260,261,272,274,286 
Ewer  V.  Cox  196 
Eyre  v.  Strahan  &  Carnan  124,  126 
V.  Walker  47 

F. 

Folsom  V.  Marsh  87,  88,  92,  94,  99, 
217,  238,  248,  265,  277 
Fores  r,  Johnes  115,  150 

Forrester  v.  Waller  50,  84, 159 

Fradella  v.  Weller  327 


INDEX    OF    CASES  CITED. 


G. 


Page. 


Gale  V.  Lcckic  230 

Gee  V.  Pritchard        91,  92,  94,  159 
Gilliver  v.  Snasrgs  316 

Gruiuinl  (Earl  oY)  v.  Dunkin  87,  159 
Gray  v.  Russell    133, 179,  254,  256, 
260,  261,269,272,  274 
Grierson  r.  Eyre  319 

V.  Jackson  125 

Gurney  v.  Longman  129 

Gyles  t'.  Wilcox  191,266 


H. 


Harrison  v.  Hogg  202 

Hime  v.  Dale  107,  152,  163 

Hogg  V.  Kirby    110,  174,  254,  294, 

297,  315 


Jeffreys  v.  Baldwin 
K. 


141 


Keane  v.  Harris  231,  294,  297 

Kelly  V.  Hooper  327 

King  (The)  v.  Clement  129 

King  V.  Reed  184 

L. 

Latour  v.  Bland  221 

Lawrence  v.  Smith      149,  152,  154, 

165,  315,  318 

Lewis  V.  Fullerton       184,  249,  264, 

272,  321 

Longman  v.  Winchester    176,  254, 

255,  258 

V.  Trip  231 

M. 

Macklin  v.  Richardson     84, 87,  103 
Manley  v.  Owen  51,  84 

Manners  v.  Blair  118, 119.  125, 127, 

128 

Martin  v.  Wright  242,  304 

Matthewson  v.  Stockdale  176,  242, 

254,  256,258,  260 


Page. 

Mawman  v.  Tegg      224,  226,  254, 

255,  256,  265,  272,  277, 

315,  316,  319,  320,  323 

MUlar  V.  Taylor   26,  28,  29,  30,  31, 

32,  38,  43,  44,  48,  54,  84,  117 

V.  Donaldson  55 

Morris  v.  Kelley  225,  300,  316 
Motte  V.  Falkner  47,  184 
Murray  v.  Benbow  154 
V.  Elliston               104,  300 


N. 
Nicol  V.  Stockdale 


224,  225 


Page  V.  Townsend  139 

Perceval  v.  Phipps  91,  92,  93,  159 

Pierpont  v.  Fowle  234 

Planch6  v.  Braham  301 

V.  Colburn  230 

Piatt  V.  Button  103,  221,  319 

Ponder  v.  Brady  1  36 

Pope  V.  Curl  84,  87,  90,  159 

Power  V.  Walker  220,  221,  223 


Q. 


Queensbury  (Duke  of)  v.  Sheb- 
beare  52,  84,  86,  87 

R. 

Read  v.  Hodges  266 

Rennet  v.  Thompson  234 

Roper  V.  Streater  40,  126 

Roworth  V.  Wilkes      1 13, 1 14,  202, 
246,  254,  256,  302 
Rundell  v.  Murray      219,  222,  315, 

319 


S, 


Sayre  v.  Moore      172, 176, 254, 257 
Saunders  v.  Smith  132,  250 

Sawyer  v.  Dicey  201 

Sheriff  r.  Coates  319 

Spottiswood  V.  Clarke  294,  296,  317 
Southey  v.  Sherwood       84,  88,  94, 
156,  157,  318 


INDEX    OF    CASES    CITED. 


XI 


Stationers*  Co.  v.  Carnau 

I'.  Parker 

■ t'.  Seymour 

Stockdale  v.  Onwhyn 
Storace  v,  Longman 
Sweet  V.  Archbold 

V.  Cater 

('.  Maugham 

V.  Shaw 


rage.  I 

128 

42,  126 

41, 128  I 

150 

223' 

231 ' 

226! 

325  i 

224,  226,  251  \ 


Thompson  v.  Stanhope      87,  88,  91 

I'.  Symonds         112,  202 

Tonson  v.  Collins  31,  53,  55 

V.  Walker     34, 47, 48,  245, 

254 
Trussler  v.  Murray      184,  254,  257 

U. 

Universities  of  Oxford  and  Cam- 
bridge V.  Richardson  118, 316,  318 


Vanness  v.  Packard 
Vesey  v.  Sweet 

W. 

Walcott  V.  Walker 
Walthoe  r.  Walker 
Webb  V.  Powers 
IK  Rose 


Page. 

74 
132 


164 

47 
287,  326 
50,  84,  159 
West  V.  Francis  113,  302 

Wheaton  v.  Peters     74,  75,  76,  80, 
81,  84,  132,  158,  160,  194 
White  r.  Gerooch  88,  160 

Whittingham  v.  Wooler       245,  325 
Wilkins  v.  Aikin  113,  115, 176,245, 
254,  258,  260,  277,  302,  315,  316 
Wright «;.  Tallis  167 

Wyatt  V.  Barnard        177,  186,  260, 

291 


LAW    OF    COPYRIGHT 


INTRODUCTION. 

THEORY   OF  THE   RIGHTS   OF   AUTHORS. 

Before  we  enter  upon  the  field  of  municipal  juris- 
prudence, it  may  be  well  to  pass  through  the  more 
enlarged  region  of  natural  law.^  Literary  Property 
has  always  asserted  claims  to  a  foundation  in  the 
principles  of  general  right  ;  and  the  nature  and  ex- 
tent of  those  claims  constitute  an  important  subject 
of  inquiry,  whenever  the  interests  of  this  property 


'  It  is  somewhat  embarrassing,  as 
all  students  of  the  Law  of  Nature 
know,  to  use  terms  accurately  de- 
scriptive of  that  code  which  deals 
with  the  general  rights  of  mankind, 
as  held  by  the  publicists  of  Christen- 
dom. The  phrase.  Natural  Law,  to 
an  unaccustomed  ear,  would  import 
simply  that  body  of  rules  which,  by 
the  aid  of  reason,  we  deduce  from 
the  light  of  Nature,  and  wliich  de- 
fines only  the  rights  which  Nature 
bestows.  But  as  it  has  been  long 
used  to  describe  not  only  the  naked 
1 


rights  of  man  in  the  natural  state, 
but  also  the  status  of  mankind  after 
those  rights  have  been  to  some  ex- 
tent modified  by  the  conditions  of 
civilized  society,  I  have  followed  the 
example  wliich  I  cannot  control. 
Grotius,  Pulicndorif,  Burlaniaqui, 
and  oilier  writers,  have  fi.xed  the 
sense  in  wliich  the  term  Natural 
Law  is  most  frequently  used  ;  and 
in  this  sense,  it  describes  the  natu- 
ral rights  of  man  after  he  has  enter- 
ed society,  though  many  of  tiiem 
originate  before  society  is  formed. 


2  INTRODUCTION. 

are  drawn  into  controversy,  through  any  defect  of 
positive  law.  The  present  inquiry  therefore  is, 
whether  the  right,  to  which  jurists  have  given  the 
name  of  Literary  Property,  has  any  foundation  in  the 
principles  of  that  code  of  general  law,  which  defines 
and  establishes  other  kinds  of  property. 

It  is,  of  course,  impossible  to  look  to  the  mere 
light  of  nature  for  a  solution  of  this  question,  or  to 
find  it  in  any  speculations  upon  the  condition  of  man 
in  that  imaginary  state,  which  has  been  called  the 
state  of  nature.  Perhaps  it  would  not  be  a  violent 
supposition,  to  imagine  a  rude  literature  of  poems  or 
traditions,  preserved  and  oraHy  transmitted,  before 
society,  properly  so  called,  has  commenced.  But, 
aside  from  the  fact  that  the  merely  natural  rights  of 
man  could  confer  no  exclusive  possession  of  ideas 
and  sentiments  thus  uttered,  it  is  to  be  observed, 
that  the  act  of  committing  ideas  to  any  corporeal 
substance,  by  means  of  signs,  and  the  multiplication 
and  delivery  of  copies,  thus  produced,  for  a  valuable 
consideration,  are  things  that  can  only  take  place 
after  society  is  formed  and  an  advanced  stage  of 
civilization  has  been  reached.  The  art  of  printing, 
as  well  as  every  other  systematic  art  of  exhibit- 
ing ideas  to  the  eye  by  means  of  characters,  in  any 
form  and  on  any  substance,  is  the  creature  of  society  ; 
and  when  we  add  to  the  exercise  of  such  an  art  the 
exchange  of  what  is  thus  created  for  any  other  valua- 
ble commodity,  or  for  the  common  representatives  of 
value,  we  have  reached  an  artificial  and  refined  con- 


THEORY    OF    THE    RIGHTS    OF    AUTHORS.  O 

dition  of  mankind,  in  which  the  mere  light  of  nature 
will  no  longer  guide  us.  We  must  have  recourse  to 
those  general  principles  of  justice  and  right,  which 
mankind  are  supposed  to  have  brought  originally 
from  the  state  of  nature,  but  by  which  they  have 
agreed  to  be  bound  in  a  state  of  civilization,  where 
they  have  become  modified,  enlarged,  and  strength- 
ened. 

It  is  very  important  to  keep  this  distinction  in 
view,  because  those  who  have  maintained  that  lite- 
rary property  has  no  foundation  but  in  the  municipal 
code,  have  drawn  most  of  their  arguments  against 
it  from  the  naked  law  of  nature,  without  perceiving, 
or  without  choosing  to  perceive,  that  it  may  derive 
its  existence  from  those  broad  and  comprehensive 
principles,  which  govern  the  relations  of  man  in  so- 
ciety, and  which,  although  they  have  originated  in 
the  merely  natural  rights  of  man,  extend  their  found- 
ations to  the  support  of  his  social  condition. 

It  should  be  observed,  also,  that  it  is  not  at  all 
necessary,  in  this  inquiry,  to  enter  into  elaborate 
disquisitions  upon  the  origin  of  property,  or  even  to 
select  from  the  various  theories  which  different  ju- 
rists or  ethical  writers  have  propounded  concerning 
it.  These  theories  are  of  no  greater  use,  on  this 
occasion,  than  to  illustrate  the  important  and  admit- 
ted doctrines,  on  which  the  existence  of  property 
actually  depends  in  civilized  society.  The  primal 
origin  of  property  opens  a  wide  field  of  speculation, 
in  which  men  of  consummate  and  equal  genius  and 


4  INTRODUCTION. 

learning  have  pursued  different  paths,  and  no  theory 
has  been  constructed  which  meets  with  universal 
acceptance.  But  all  the  speculations  of  philoso- 
phers, from  the  time  of  Aristotle  to  the  present  age, 
have  sprung  from  and  again  conducted  to  one  fact  — 
the  existence  of  property  itself;  and  while  its  exist- 
ence has  been  variously  accounted  for,  the  different 
explanations  of  its  origin  have  all  tended  to  show, 
that  there  are  certain  great  characteristics  which 
mankind  have  universally  attributed  to  the  right 
thus  found  to  exist,  and  certain  great  principles  of 
justice  by  which  they  have  found  that  it  must  be  re- 
gulated. To  these  principles  and  characteristics  we 
must  look  for  a  test,  in  order  to  answer  the  question 
—  most  material  in  the  present  discussion  —  What 
constitutes  property  ?  Having  satisfied  ourselves  on 
this  head,  we  shall  be  able  to  say  whether  any  sup- 
posed subject  of  the  right  possesses  the  general  attri- 
butes of  property,  and  whether  it  is  agreeable  to 
justice  and  fitness  that  it  should  be  so  recognized. 

It  is  very  generally  conceded,  that  property,  under 
the  modifications  and  conditions  with  which  we  now 
have  it,  supposes  the  consent  of  mankind,  and  that 
those  modifications  and  conditions  do  not  spring  from 
individual  will  alone.^     It  follows,  therefore,  that  the 

•    Grotius,  Droit  de  La  Guerre,  principles,    and    consequently   they 

&c.  liv.  2,  ch.  2,  ^  10,  torn.  1,  (ed.  cannot  abolish  property,  strictly  and 

Basle,  1740.)      Hutherforth's  Insti-  entirely.      The   ('reator   has   made 

lutes,  B.  1,0.  3.     The  consent  of  man  asocial  being,  and  has  made  it 

mankind  does  not  indeed  establish  necessary,  for  the  development   of 

the  principles  on  which  property  de-  his  faculties  and  to  accomplish  the 

pends.     Men  cannot   abolish  those  ends  of  his  being,  that  he  should 


THEORY    OF    THE    RIGHTS    OF    AUTHORS.  0 

essential  qualities  of  property  must  be  those  condi- 
tions which  mankind  have  generally  agreed  in  attri- 
buting to  it. 

1.  First,  then,  the  definition  of  property,  on  which 
mankind  are  agreed,  is,  that  it  embraces  what  is  not 
common  to  the  whole  race,  but  belongs  to  a  less 
number  than  the  whole  human  family,  whether  one 
or  more  individuals.  In  a  community  of  goods, 
among  the  whole  race,  or  a  nation,  or  a  smaller  col- 
lection of  individuals,  the  right  to  use  is  in  each  indi- 
vidual, in  the  place  of  property  ;  but  property  in  the 
goods  continues,  and  this  property  itself  is  in  the 
whole  body.  As  soon,  however,  as  property  with 
reference  to  individuals  is  established,  something 
more  than  the  right  to  use  follows.  An  exclusive 
title,  which  embraces  the  right  to  use  and  the  right 
to  exclude  all  others  both  from  use  and  possession, 
and  the  right  to  transmit  both  use  and  possession  to 
others,  constitutes  property,  in  the  sense  in  which 
all  mankind  are  agreed,  implying  the  total  separation 
of  the  object  itself  from  a  community  of  goods. 

2.  In  the  second  place,  all  property  possesses  two 
uses,  or  qualities.     First,  it  implies  the  right  of  pos- 


live  in  some  form  of  society.     Some  of  property,  and  has  thus  fortified 

form  of  property  is  essential  to  the  its  existence   by  the   operations  of 

existence  of  society  ;  and   through  conscience.     At  the  same  time,  the 

this  chain  of  reasoning,  property  is  general  consent  of  mankind  is  xight- 

to  be  traced,  as  to  one  of  its  main  ly  supposed   to  indicate   the  main 

supports,  to  the  will  of  tiie  Creator,  qualities  of  property,  because  it  ac- 

In  addition  to  this,  he  has  implanted  tually  exists  according  to  the  modi- 

in  the  human  breast  certain  princi-  fications  and  conditions  which  that 

pies  of  justice  which  will  not  permit  consent  has  established, 
the  violation  of  the  essential  rights 
1* 


6  INTRODUCTION. 

session  and  use  ;  which  constitutes  a  part  of  the 
ownership,  or  appropriation  of  the  individual.  This 
right  of  possession  and  use  is  full  and  exclusive. 
The  object  may  be  enjoyed  by  the  individual  in  any 
mode  consistent  with  the  general  welfare  ;  a  limita- 
tion which  does  not  arise  from  any  inherent  defect 
in  the  right  itself,  but  is  imposed  upon  it  from  with- 
out. Secondly,  property  implies  the  faculty  of 
transmission,  by  exchange,  or  sale,  or  gift.  Trans- 
mission, if  unrestrained,  carries  with  it  the  full  and 
exclusive  right  of  possession  and  use  of  the  original 
owner,  indefinitely,  so  that  the  object  remains  for- 
ever separated  from  a  community  of  goods.  But,  as 
the  original  owner  may  grant  the  whole  unrestricted 
right  of  possession  and  use,  so  it  follows  that  he  may 
grant  a  less  right  than  he  himself  enjoyed,  by  re- 
stricting or  qualifying  the  use.  He  may  thus  specify 
the  uses  for  which  he  does  or  does  not  grant  the 
possession,  and  may  annex  various  conditions  upon 
which  the  possession  shall  be  held.  The  observ- 
ance of  these  conditions  is  to  be  enforced  by  the 
same  principles  of  justice  which  govern  the  whole 
title  of  the  original  owner.  If  he  has  granted  only 
a  part  of  his  right,  and  the  other  part  is  usurped, 
the  same  principle  of  justice  is  violated,  as  when  his 
whole  right  is  usurped  without  his  having  granted 
any  part  of  it. 

.3.  In  the  third  place,  property  may  be  in  every- 
thing capable  of  these  uses.  Whatever  admits  of 
occupancy  and  of  the  transmission  of  occupancy  may 


THEORY    OF    THE    RIGHTS    OF    AUTHORS.  7 

be  the  subject  of  property.  Whatever,  on  the  con- 
trary, does  not  admit  of  occupancy,  and  is  not  capa- 
ble of  being  transferred  with  an  exclusive  title  to 
others,  cannot  be  the  subject  of  property.  Thus, 
light  and  air  cannot  of  themselves  be  appropriated 
by  individuals  to  the  exclusion  of  the  rest  of  man- 
kind, because  they  cannot  be  included  within  limits 
and  held  and  possessed  in  severalty.  Each  human 
being  may  use  all  of  them  that  he  requires  for  his 
own  purposes,  without  exhausting  the  common  stock, 
which  is  inexhaustible.  In  like  manner,  no  man  can 
sell  or  transfer  to  another  the  air  or  the  light,  be- 
cause he  cannot  first  obtain  the  exclusive  occupancy 
thereof.  One  may  sell  or  transfer  peculiar  advan- 
tages or  positions  for  the  enjoyment  of  all  that  por- 
tion of  the  air  or  the  light,  which  one  or  more  human 
beings  can  draw  from  the  common  stock,  in  actual 
use.  But  this  creates  no  opportunity  to  occupy  the 
great  body  of  the  air  or  the  light,  which  are  in  them- 
selves incapable  of  being  h'eld  within  limits  or  bound- 
aries, or  parcelled  out  into  different  proprietaries. 

The  same  is  true  of  the  ocean.  The  great  reasons 
why  the  ocean  cannot  be  the  subject  of  property 
form  one  of  the  most  interesting  topics  in  the  law  of 
nations,  into  which  it  would  be  too  great  a  digression 
to  enter  here.  It  is  sufficient  to  note  the  illustra- 
tions which  they  present  of  the  qualities  which  be- 
long to  the  subjects  of  property.  The  ocean  cannot 
be  occupied  ;  for  although  astronomers  and  geogra- 
phers have   traced  imaginary  circles  of  latitude  and 


8  INTRODUCTION. 

longitude,  which  theoretically  divide  its  surface,  no- 
thing like  actual  occupation  by  boundaries  or  barriers 
has  ever  been  attempted  or  can  ever  be  possible. 
No  part  of  the  ocean  can  be  taken  and  held  in  seve- 
ralty, because  no  part  of  it  can  be  designated  as 
under  occupation,  by  any  limits  or  marks  capable 
of  being  fixed  upon  its  surface.  Every  nation  and 
every  individual  may  use  it,  as  occasion  requires, 
and  such  use  in  no  degree  diminishes  or  restrains 
the  use  of  it  by  others,  since  the  same  waves  will 
successively  and  forever  transport  the  fleets  of  the 
whole  world.  Accordingly,  there  is  no  evidence 
that  mankind  have  at  any  period  entertained  the  in- 
tention of  making  the  ocean  the  subject  of  property. 
It  has  ever  been  left  as  the  common  highway  of  na- 
tions, in  and  upon  which  the  rights  of  all  mankind, 
from  the  necessity  of  the  case,  are  perfectly  equal.' 

On  the  other  hand,  the  surface  of  the  earth,  and 
everything  upon  or  beneath  it,  and  everything 
upon  or  beneath  the  surface  of  the  water,  capable 
of  being  reduced  into  exclusive  possession,  may  be 
the  subject  of  property ;  and  the  exclusive  posses- 
sion carries  with  it  the  faculty  of  transmitting  the 
whole  of  the  same  right,  or  a  part  of  it,  and  of 
dictating  in  what  manner  and  under  what  restrictions 
the  subject  of  the  right  shall  be  used.  In  a  refined 
state  of  civilization,  these  subordinate  rights  become 
themselves  objects  of  distinct  consideration,  and  are 

'  Grotius  Droit  de  la  Guerre,  &c.     Mar.  De  I'Europe,   torn.  1,   ch.  1, 
Liv.   2,  ch.  2,  ()  3.     Azuni,  Droit     §  5,  25, 


THEORY    OF    THE    RIGHTS    OF    AUTHORS.  \) 

made  capable  of  distinct  enjoyment,  defined  by  posi- 
tive rules,  or  defended  by  the  general  principles  of 
justice.  The  right  to  pass  over  the  soil,  or  to  gather 
a  definite  portion  of  the  fruit  that  grows  upon  it,  may 
be  severed  from  the  ownership  of  the  soil  itself;  and 
the  grant  of  these  subordinate  rights  does  not  neces- 
sarily suppose  a  grant  of  the  proprietorship  of  the 
soil,  or  of  any  other  of  the  rights  of  the  original  pro- 
prietor. The  use  of  an  animal,  for  a  fixed  period  or 
in  a  certain  manner,  may  be  separated  from  the  own- 
ership of  the  animal,  and  a  contract  for  the  one 
does  not  imply  a  contract  for  the  other. 

We  are  to  inquire,  then,  whether  the  claim  of 
authors  to  the  exclusive  multiplication  and  sale  of 
copies  of  their  own  literary  productions  can  be 
brought  within  the  fair  scope  of  these  principles. 
In  determining  this  question,  it  is  obviously  necessary 
to  define  the  right  claimed,  and  to  ascertain  its  essen- 
tial character. 

The  right  claimed  by  an  author,  after  publication, 
is  not  to  the  exclusive  possession  or  appropriation, 
intellectually,  of  the  ideas  and  sentiments  which  he 
originates  and  puts  upon  paper.  In  the  first  place, 
such  an  appropriation  becomes  impossible,  as  soon 
as  he  imparts  to  others  the  means  of  an  intellectual 
perception  of  his  ideas  ;  and  in  the  next  place,  it  is 
inconsistent  with  the  very  objects  for  which  he  pub- 
lishes to  others  the  conceptions  of  .his  own  mind. 
Such  an  appropriation  is  impossible,  because  if  I  am 
permitted  to  read  the   ideas   and   sentiments  which 


10  INTRODUCTION. 

another  has  written,  they  become  part  of  my  intel- 
lectual possessions,  as  far  as  I  can  retain  them  in  my 
memory,  and  no  rule  can  be  established  which  would 
deprive  me  of  the  opportunity  to  use  them  for  my 
own  enjoyment,  or  to  impart  a  knowledge  of  them  by 
speech  to  others.  Such  an  appropriation  by  the 
author  is  also  inconsistent  with  one  of  his  objects  in 
publishing  his  thoughts  ;  which  is  to  impart  his  own 
thoughts  to  others,  to  induce  others  to  make  them 
part  of  their  intellectual  possessions,  and  thus  to 
influence,  refine,  or  instruct  his  fellow-men,  to  gain 
their  admiration,  excite  their  pity,  or  influence  their 
conduct.  The  painter,  who  spreads  upon  canvass 
the  immortal  conceptions  of  genius,  does  not  ordi- 
narily intend  to  be  the  sole  beholder  of  the  images 
which  he  thus  creates.  The  grandeur  and  loveli- 
ness, to  which  he  has  given  outward  form,  he  places 
before  the  eyes  of  others,  in  order,  expressly,  that 
they  may  fully  appropriate  into  their  own  intellectual 
perceptions  the  ideas  which  he  has  embodied.  In 
like  manner,  the  author  who  writes  and  publishes, 
writes  and  publishes  that  he  may  be  read  —  that 
other  men  may  absorb  into  their  own  intellectual 
natures  the  thoughts  which  have  had  their  birth  in 
his  reason  or  imagination,  making  them  part  and 
parcel  of  their  own  minds. 

But  it  does  not  follow,  because  this  is  one  of  the 
objects  of  the  painter  or  the  author,  in  the  exercise 
of  their  respective  arts,  that  there  may  not  be  an- 
other purpose  collateral  to  this,  and  in  all  respects 


THEORY    OF    THE    RIGHTS    OF    AUTHORS.  11 

consistent  with  it.  It  may  be  the  purpose  of  both 
the  painter  and  the  poet,  while  they  delight  or  in- 
struct mankind,  to  receive  a  direct  compensation  for 
the  pleasure  or  instruction  which  they  impart  ;  and 
the  question  is,  whether  there  is  any  right,  by  the 
exercise  of  which  they  can  make  this  purpose  effect- 
ual ;  or,  in  other  terms,  whether  there  is  anything 
to  which  the  compensation  can  be  made  to  attach. 

The  right  to  multiply  copies  of  what  is  written  or 
printed,  and  to  take  therefor  whatever  other  pos- 
session mankind  are  willing  to  give  in  exchange, 
constitutes  the  whole  claim  of  literary  property. 
This  claim  leaves  wholly  undisturbed  the  opportunity 
of  every  reader  to  make  an  intellectual  appropriation 
of  the  ideas  suggested  to  him  by  the  characters 
which  he  purchases  ;  it  goes  no  farther  than  to  as- 
sert an  exclusive  right  to  the  profits  which  may  be 
derived  from  the  production  of  successive  copies  of 
the  characters  which,  in  a  particular  combination, 
represent  a  set  of  intellectual  ideas.  This  right  is 
to  be  derived,  if  at  all,  from  the  original,  exclusive 
invention  and  possession  by  the  author  of  the  ideas 
themselves,  and  of  the  combination  of  characters 
which  exhibits  those  ideas.  If  this  right  can  be  dis- 
tinctly traced  to  original  possession  and  invention, 
and  if  the  exercise  of  the  right  involves  the  general 
attributes  which  belong  to  property,  there  is  no  rea- 
son why  it  should  not  be  placed  among  the  rights  of 
property. 

The  author  of  every  original   literary  composition 


12  INTRODUCTION. 

creates  both  the  ideas  and  the  particular  combination 
of  characters  which  represents  those  ideas  upon 
paper.  He  is  therefore  an  inventor,  in  two  senses  ; 
and  he  has  the  exclusive  possession,  before  publica- 
tion, of  his  invention.  Every  one  may  use  the  ele- 
mental characters  of  which  the  original  author  makes 
use,  in  other  combinations,  but  if  any  one  uses  them 
in  the  same  precise  combination,  he  exhibits  neces- 
sarily the  ideas  of  the  original  author.  The  two 
subjects  of  the  invention  are  therefore  inseparably 
interwoven,  and  when  we  contemplate  them  in  their 
blended  condition  upon  the  written  or  printed  page, 
they  present  to  the  mind  the  idea  of  one  creation  or 
invention  only.  Considered,  however,  with  refer- 
ence to  its  component  parts,  this  invention  consists 
of  distinct  creations,  the  ideas  themselves  and  the 
combination  of  characters  which  exhibits  those  ideas 
to  the  eye.  Both  are  new,  both  have  never  existed 
before,  and  both  are  capable  of  being  retained  in  the 
exclusive  possession  of  the  original  inventor. 

The  author,  then,  has  in  his  possession  a  valuable 
invention,  which  he  may  withhold  or  impart  to  others 
at  his  pleasure.  His  dominion  over  his  written  com- 
position is  perfect,  since  it  is  founded  both  in  occu- 
pancy or  possession,  and  in  invention  or  creation. 
No  title  can  be  more  complete  than  this. 

From  this  full  and  complete  title  flows  the  right 
to  annex  conditions  to  the  transfer  of  such  a  written 
composition,  when  the  author  chooses  to  impart  the 
possession  of  it  to  others.     It  cannot  be  doubted  that 


THEORY    OF    THE    RIGHTS    OF    AUTHORS.  13 

this  right  is  inherent  in  every  possession  vested  in  an 
individual  by  the  rules  T)f  natural  or  positive  law.  It 
enables  the  owner  of  a  literary  composition  to  de- 
clare the  purposes  for  which  he  grants  it  to  others, 
in  the  same  manner  as  it  enables  the  owner  of  a  piece 
of  merchandise  to  declare  that  he  grants  the  full 
property,  or  only  a  qualified  use  thereof,  when  he 
gives  the  possession  of  it  to  another.  In  both  cases, 
the  principles  of  justice  require  that  this  right  of  the 
original  owner  should  be  respected  in  the  same  man- 
ner as  his  original  possession  ;  for  if  it  would  be  a 
violation  of  justice  to  deprive  him  of  all  his  rights, 
when  he  has  reserved  them  all,  it  is  equally  so  to 
deprive  him  of  a  part  of  them,  which  he  reserved, 
when  he  granted  another  part. 

The  right  of  literary  property  commences,  there- 
fore, from  a  full  and  exclusive  intellectual  possession 
of  his  ideas,  by  the  author,  coupled  with  the  physical 
possession  of  the  combination  of  characters  repre- 
senting those  ideas,  which  he  has  traced  upon  paper 
or  other  material.  As  soon  as  publication  takes 
place,  it  is  no  longer  his  object  or  intention  to  retain 
to  himself  the  intellectual  appropriation  and  enjoy- 
ment of  the  ideas  themselves.  What  he  does  seek 
to  reserve  is,  the  exclusive  multiplication  of  copies 
of  that  particular  combination  of  characters,  which 
exhibits  to  the  eye  of  another  the  ideas  that  he  in- 
tends shall  be  received.  His  power  to  do  this  de- 
pends upon  his  exclusive  title  to  his  invention,  and 
upon  the  fact  that   each  copy  constitutes  a  valuable 


14  INTRODUCTION. 

commodity,  which  he  can  exchange  for  other  posses- 
sions. 

The  author's  exclusive  title  is  not  only  theoreti- 
cally perfect,  but  it  is  practically  acknowledged  by 
mankind,  since  in  every  civilized  society  men  are 
willing  to  give  him  valuable  possessions  in  exchange 
for  the  opportunity  to  read  what  he  has  written. 
This  opportunity  men  will  purchase,  if  they  cannot 
have  it  without  purchase.  It  is  in  the  power  of  the 
author  to  say,  that  they  must  purchase  it,  because 
he  is  the  absolute  owner  of  the  copy  which  they  de- 
sire to  peruse.  In  the  contract  of  sale  which  thus 
takes  place,  the  owner  of  the  literary  composition 
may,  of  course,  annex  to  the  transfer  any  conditions 
that  he  pleases  ;  and  the  question  therefore  next 
arises,  whether  he  does  not  tacitly  annex  the  condi- 
tion, that  other  copies  shall  not  be  multiplied  from 
the  copy  that  he  sells,  and  whether  the  purchaser 
does  not  take  the  copy  burthened  with  this  restric- 
tion. 

The  fair  construction  of  a  contract  of  sale  requires, 
that  the  implied  rights,  which  are  supposed  to  be 
conferred  by  the  seller  upon  the  purchaser,  should  be 
determined  by  the  apparent  objects  of  the  sale,  and 
the  price  paid  for  the  thing,  when  there  are  «o  ex- 
press stipulations  made.  The  delivery  of  a  piece  of 
merchandise  for  a  price  ordinarily  held  to  be  the 
measure  of  value  for  all  the  rights  in  it  enjoyed  by 
the  owner,  implies  that  the  full  right  of  property 
passes,  including  the  right  to  use  the  thing  in  every 


THEORY    OF    THE    RIGHTS    OF    AUTHORS.  15 

form  of  which  it  is  capable.  But  if  A.  is  found  to 
have  in  his  possession  a  chattel  formerly  known  to 
belong  to  B.,  and  the  consideration  paid  by  A.  is 
sufficient  only  to  cover  the  value  of  the  possession 
for  a  restricted  use,  and  is  far  less  than  the  full  value 
of  the  entire  and  absolute  dominion  over  the  chattel, 
a  fair  presumption  arises  in  natural  equity,  that  the 
parties  contemplated  in  the  transaction  the  sale  and 
purchase  of  a  right  to  use  the  chattel  for  a  limited 
purpose. 

When  the  purchaser  of  a  single  copy  of  a  book 
pays  for  it  whatever  may  be  the  current  price  set  by 
the  author,  if  he  can,  by  the  rules  of  natural  law,  be 
supposed  to  acquire  thereby  all  the  uses  of  which  the 
copy  is  capable,  including  the  faculty  of  indefinite 
multiplication,  he  purchases  for  a  grossly  inadequate 
consideration  what  is  perhaps  a  mine  of  wealth. 
The  profits  which  may  be  derived  from  the  indefinite 
multiplication  of  copies  justly  belong  to  some  one. 
The  author  has  created  the  opportunity  of  reaping 
them,  and  is  the  sole  owner  of  the  original  copy 
from  which  all  others  must  be  taken.  This  oppor- 
tunity or  faculty  of  receiving  what  the  public  will 
certainly  and  freely  give,  in  exchange  for  copies  of 
a  literary  production,  is  therefore  a  franchise  to 
which  no  one  can  show  so  good  a  title  as  the  author, 
who  has  created  it.  To  hold  that  he  intends  to  sell 
it,  when  he  parts  with  a  single  copy  of  his  composi- 
tion for  a  price  implying,  if  it   implies  anything,  a 


16  INTRODUCTION. 

reservation  of  it,  is  wholly  inconsistent  with  the  rules 
of  natural  justice.^ 

But  there  is  still  another  proof  that  the  author  re- 
serves to  himself  the  sole  right  of  multiplying  copies 
of  his  works,  when  he  exposes  single  copies  to  sale. 
The  object  and  purpose  of  publication  are  to  put  into 
the  hands  of  the  purchaser  of  a  copy  the  means  of 
becoming  acquainted  with  the  author's  thoughts. 
What  proof  is  there  that  the  author  contemplates 
anything  more  ?  If  it  is  supposed  that  he  intends  to 
forego  the  profits  which  may  be  derived  from  his 
work,  then  the  consequence  also  follows  that  he 
intends  to  abandon  to  others  the  reproduction  of 
copies,  without  exercising  any  care  for  his  own  re- 
putation, or  any  supervision  over  the  manner  in 
which  the  copies  shall  be  reproduced.  If  this  last 
supposition  prevails,  then  the  author  himself  defeats 
the  object  of  publication,  since  he  cannot  make  it 
certain  to  the  reader  or  himself,  that  his  thoughts 
will  continue  to  be  accurately  represented.  But  the 
interests  of  the  author  are  far  too  great  to  admit  of 
any  mere  hypothesis  as  to  his  intentions,  inconsistent 
with  those  interests.  If  he  has  not  expressly  or 
by  necessary  implication  granted  or  abandoned  his 

'  PufTendorfT  states  succinctly  the  that  any  one  designs  to  give  away, 

rule    of  natural   equity   concerning  by  contract,  more  than  he  supposes 

the  equality  of  contracts.     '•  Since  he    receives  ;    and   consequently   a 

contracts  are  necessary  for  my  ob-  contract  can  give  a  right  to  another 

taining  those  things  which  I  had  no  man's  goods  no  further  than  as  they 

right  to  claim  ;  and  since  it  is  pre-  are  equivalent  to  something  which 

sumed   that   a   man    gives   nothing  that  other  man  receives."     Puffen- 

gratis,  which  he    parts  with    upon  dorf 's  Law  of  Nature,  &c.  by  Uar- 

contract;  we  cannot  therefore  think  heyrac.     B.  v.  oh.  iii.  ^  1. 


THEORY    OF    THE    RIGHTS    OF    AUTHORS.  17 

rights,  it  must  be  presumed  that  he  has  reserved 
them  to  himself,  since  it  is  not  ordinarily  consistent 
with  human  motives,  for  men  to  throw  away  vast  in- 
terests, which  touch  both  their  fortunes  and  their 
fame. 

That  there  is  no  such  presumption  against  the 
author's  reservation,  is  proved  by  the  practice  and 
consent  of  mankind.  Every  civilized  nation,  of  any 
literary  rank,  has  some  law  recognizing  the  property 
of  authors  in  their  works. ^  This  universal  legisla- 
tion is  founded  in  a  conviction  that  such  property 
exists  in  natural  justice  ;  for  although  the  protection 
thus  afforded  by  positive  law  is  generally  temporary, 
and  embodies,  as  I  shall  hereafter  suggest,  a  com- 
promise between  the  strict  rights  of  the  author  and 
the  demands  of  society,  yet  it  proves  the  existence 
of  those  rights,  by  undertaking  to  reconcile  them 
with  the  wants  and  interests  of  the  public  at  large. 
There  is  no  other  hypothesis  to  account  for  the  care- 
ful legislation  of  so  many  countries. 

Such  being  the  nature  of  the  author's  claim,  and 
such  the  right  upon  the  exercise  of  which  it  depends, 
it  is  in  the  nature  of  property,  because  there  is  in 
possession  an  invention  capable  of  being  made  a 
source  of  profit,  and  which  will  certainly  produce 
profit   to   the  proprietor,  if  society  does  not  permit 

'  For  a  view  of  tlic  legislation  of  the  United  States  of  America,  IIol- 

different  countries,  on   the  rights  of  land    and    Belgium,    the    diflbrent 

authors,  see  the  work  of  M.  Charles  States  of  Germany,  Denmark,  Hus- 

Renouard,  Trait6  des  Droits  D'Au-  sia,  the  Kingdom  of  the  two  Sici- 

teurs,  Paris,  1838,  t.  1.     He  gives  lies,  and  Sardinia. 
the  legislation  of  England,  France, 

2* 


18  INTRODUCTION. 

Others  to  avail  themselves  of  it  without  returning 
any  compensation.  As  soon  as  the  law  declares  that 
the  profits  arising  from  the  multiplied  copies  of  this 
invention  shall  not  be  taken  by  any  one  but  the  au- 
thor, such  profits  immediately  flow  from  the  use  of 
the  invention  ;  and  before  the  enactments  of  positive 
law  have  so  declared,  the  law  of  nature  makes  it 
clear,  that  these  profits  belong  to  him  who  has  cre- 
ated and  holds  the  invention,  and  who  can  withhold 
it  from  others,  until  by  some  pact  or  convention,  ex- 
press or  implied,  he  has  secured  the  compensation 
which  he  sees  fit  to  demand. 

It  is  not  unworthy  of  remark,  also,  that  public  po- 
licy requires  a  recognition  of  the  natural  rights  of 
authors,  as  the  basis  of  legislation.  It  does  so,  be- 
cause the  highest  policy  of  society  is  justice.  There 
is,  in  the  requirements  of  national  character,  the 
same  high  necessity  for  honesty  and  good  faith,  that 
lies  with  the  whole  weight  of  moral  obligation  upon 
the  individual.  Society  cannot  afford  to  be  unjust. 
Its  prosperity  is  the  aggregate  prosperity  of  its 
members.  Its  character,  its  peace  and  dignity,  the 
amount  of  happiness  which  it  may  attain,  or  be  the 
instrument  of  attaining  to  its  members,  depend  di- 
rectly upon  the  harmony  that  reigns  through  its 
internal  relations,  and  upon  the  degree  to  which  it 
has  enforced  the  observance  of  justice  and  respect 
for  the  great  maxims  in  which  the  essence  of  justice 
is  enshrined.  When  society  ceases  to  be  just,  it 
ceases  to  be  safe.     No  infraction  of  a  public  principle 


THEORY    OF    THE    RIGHTS    OF    AUTHORS.  19 

ever  takes  place,  without  being  followed  by  retribu- 
tive social  evils.  When,  by  a  total  neglect  of  the 
natural  rights  of  authors,  injustice  is  done  to  a  class 
of  conspicuous  and  important  benefactors  of  their 
race,  the  violation  of  principle  becomes  the  more 
glaring,  and  the  injury  to  the  moral  sense  of  society 
more  striking,  from  the  species  of  ingratitude  involv- 
ed in  the  neglect.  There  is  scarcely  any  civilized 
people,  who  would  not  be  shocked  by  a  proposal  to 
withdraw  all  protection  from  the  interests  of  literary 
property. 

Public  policy  also  requires  a  careful  protection  of 
the  rights  of  authors,  because  literature  flourishes 
most  when  it  reaps  the  rewards  consequent  upon 
such  protection.  There  can  be  no  doubt  that  the 
body  of  literature,  now  extant  in  the  English  lan- 
guage, owes  a  vast  deal  to  the  acknowledgment  of 
these  rights,  imperfect  as  it  has  sometimes  been. 
Although  no  legislative  protection  existed  before  the 
reign  of  Queen  Anne,  there  was  a  protection  founded 
in  an  acknowledged  common  law  right,  and  the  prac- 
tice of  printers  and  booksellers,  which  may  be  traced 
as  far  back  as  the  reign  of  Queen  Elizabeth.  The 
existing  literature  of  England,  of  a  date  subsequent 
to  that  time,  and  the  whole  of  that  of  America,  have 
been  produced  under  the  stimidus  afforded  by  a 
greater  or  less  degree  of  security  to  the  pecuniary 
interests  of  authors.  It  is  not  easy  to  say,  with  cer-' 
tainty,  that  any  portion  of  this  literature  would  not 
have  been  produced,  if  an  author's  exclusive  right  to 


20  INTRODUCTION. 

the  proceeds  of  publication  had  never  been  admitted ; 
nor  is  it  easy  to  find  many  works,  now  classical  in 
the  language,  or  of  an  important  cliaracter,  which 
we  know  certainly  were  written  without  any  view  to 
profit,  whether  large  or  small.  What  we  know  cer- 
tainly, is,  that  from  Shakspeare  to  our  own  day, 
everything  has  been  written  under  some  state  of  the 
law,  admitting  an  author's  right,  and  that  very  few 
great  authors  have  avoided  or  neglected  all  recom- 
pense for  their  writings,  while  the  vast  majority  have 
written  for  money  as  well  as  fame/ 

But  it  is  not  solely  for  the  encouragement  of  ge- 
nius in  its  transcendent  displays,  that  it  concerns  the 
interests  of  society  to  protect  the  rights  of  authors. 
The  great  classes  of  compilers  and  scholars,  whose 
works  embody  the  learning  of  a  country  or  an  age  — 
embracing  the  historian,  the  lexicographer,  the  critic 
and  the  commentator  ;  the  whole  body  of  scien- 
tific writers,  from  the  author  of  a  mechanism  of  the 
heavens  to  the  author  of  the  last  shilling  arithmetic ; 
the  various  grades  of  writers  in  every  department, 
from  the  higher  votaries  of  letters  to  the  day-labor- 
ers in  the  vineyard  of  knowledge,  are  all  necessary 
to  the  formation  of  a  national  literature  and  the  de- 
velopment of  a  general  culture.  All  require  that 
the  fruits  of  their  labor,  like  the  fruits  of  other  men's 
labor,   should  be  under  the  protection  of  the  law ; 


'  There  is  very  little   reason  to     mon  law  right,  in  the  reign  of  Eliz- 
doubt,  that  the  right  of  authors  was    abeth.     (See  post,  ch.  2.) 
practically  acknowledged  as  a  com- 


THEORY    OF    THE    RIGHTS    OF    AUTHORS.  21 

for  like  other  men,  they  labor  for  subsistence  and  the 
comforts  of  life,  and  it  is  only  when  these  are  secured 
to  them,  that  they  can  be  expected  with  certainty  to 
labor  at  all.  Glory  may  be  the  reward  of  genius  in 
solitary  and  irregular  cases  ;  but  no  man  ever  wrote 
a  spelling-book  or  compiled  an  almanac  for  that  un- 
substantial and  thankless  commodity. 

It  remains  to  answer  certain  objections.  In  the 
first  place,  it  may  be  asked,  if  the  rights  of  authors 
are  so  clearly  founded  in  natural  justice,  how  is  it 
that  the  law  of  nations,  which  recognizes  and  re- 
spects most  of  the  rights  of  property,  has  not  recog- 
nized the  property  of  authors  in  their  works,  but  has 
allowed  them  to  be  treated,  in  a  foreign  country,  as 
if  they  were  publici  juris  ? 

The  law  of  nations  is  an  admirable  system  of  rules 
and  principles,  tending,  more  or  less  directly  at 
different  periods,  to  perfection,  but  not  entirely 
complete,  at  present.  It  has  long  been  accustomed 
to  regard  the  title  of  movable  property  as  sacred, 
wherever  found  ;  so  that  the  real  owner  may  pursue 
and  reclaim  it  in  any  country  with  which  his  own  is 
at  peace.  Even  in  the  tumult  of  war,  it  exerts  a 
searching  and  efficient  energy,  regulated  by  the 
maxims  of  a  broad  jurisprudence,  to  distinguish  be- 
tween neutral  and  belligerent  interests  ;  in  order 
that  nothing  but  the  strict  rights  of  warfare  shall  be 
allowed  to  divest  the  ownership  of  property.  But  the 
law  of  nations  has  not  always  been  so  careful  ;  the 
time  has  been,  when  the  goods  of  the  merchant,  cast 


22  INTRODUCTION. 

by  tempestuous  weather  upon  a  foreign  shore,  have 
been  accounted  the  lawful  prey  of  any  occupant.  It 
is  manifest,  therefore,  that  the  law  of  nations  is  a 
progressive  system.  The  fact,  that  its  principles 
have  never  been  applied  to  a  certain  case,  does  not 
disprove  the  existence  of  principles,  which  might  be 
made  to  regulate  it. 

At  present,  however,  these  principles  have  not 
been  applied  to  the  rights  which  we  are  now  consid- 
ering. The  actual  law  of  nations  knows  no  exclu- 
sive right  of  an  author  to  the  proceeds  of  his  work, 
except  that  which  is  enforced  by  the  municipal  law 
of  his  own  country,  which  can  operate  nowhere  but 
in  its  own  jurisdiction.  As  soon  as  a  copy  of  a  book 
is  landed  in  any  foreign  country,  all  complaint  of  its 
republication  is,  in  the  absence  of  a  treaty,  fruitless, 
because  no  means  of  redress  exist,  except  under  the 
law  of  the  author's  own  country.  Il  becomes  public 
property,  not  because  the  justice  of  the  case  is 
changed,  by  the  passage  across  a  sea  or  a  boundary, 
but  because  there  are  no  means  of  enforcing  the  pri- 
vate right.  The  law  of  nations,  being  in  great  part 
a  body  of  customary  rules,  depends  upon  the  prac- 
tice of  nations  ;  and  what  has  not  been  practised, 
cannot  be  affirmed  to  be  part  of  that  law.  But  the 
real  equity  of  the  case,  founded  in  the  principles 
which  govern  other  rights,  requires  that  the  author's 
interest  in  his  book  should  be  respected  throughout 
the  globe,  as  much  as  the  interest  of  a  merchant  in  a 
bale  of  goods.    The  natural  justice  of  the  case,  there- 


THEORY    OF    THE    RIGHTS    OF    AUTHORS.  23 

fore,  has  between  some  nations  led  to  treaty  stipula- 
tions, by  which  alone  the  casus  omissus  of  the  pub- 
lic law  can  be  supplied  ;  and  the  example  of  those 
nations,  which  have  thus  supplied  the  omission,  shows 
what  consistency  with  the  principles  of  justice  re- 
quires. 

In  the  next  place,  it  may  he  asked,  how  the  actual 
legislation  of  most  countries,  limiting  the  duration  of 
an  author's  right,  is  to  be  reconciled  with  the  theory 
which  gives  him,  if  it  gives  anything,  a  perpetuity  ? 
If  the  theory,  which  founds  an  author's  exclusive 
right  to  the  proceeds  of  his  work  in  natural  justice, 
be  correct,  it  certainly  involves  as  a  consequence  the 
perpetual  duration  of  the  right.  The  legislation  of 
England  and  America,  and  of  many  other  countries, 
has  practically  abridged  the  author's  property,  and 
reduced  it  to  a  term  of  years.  Does  it  follow  that 
society,  in  this  course  of  legislation,  is  unjust  ? 

The  actual  legislation  on  this  subject  should  be  re- 
garded as  a  compromise.  The  claim  of  authors,  re- 
sulting from  the  principles  of  natural  right,  involves 
the  perpetual  duration  of  the  property.  But  in  order 
that  such  property  should  be  of  any  value,  it  is  neces- 
sary that  society  should  interfere  actively  for  its  pro- 
tection. It  can  interfere  by  the  enactment  of  penalties, 
which,  in  order  to  be  eiTectual,  must  be  severe  ;  or  it 
can  interfere  by  prohibition,  which  is  a  stern  and  sum- 
mary exercise  of  power.  Society  will  not  ordinarily 
be  willing  to  apply  such  remedies  in  favor  of  an  ex- 
clusive right,  any  farther  than  it   finds  such  a  course 


24 


INTRODrCTION. 


beneficial  to  its  own  interests,  in  the  broadest  sense 
of  the  term.  A  perpetuity  in  literary  property  in- 
volves some  inconveniences,  which  may  come  to  be 
serious  ;  one  of  which  is,  that  the  text  of  an  author, 
after  two  or  three  generations,  if  the  property  be 
retained  so  long  by  his  descendants,  belongs  to  so 
many  claimants,  that  disputes  must  arise  as  to  the 
right  to  publish,  which  are  very  likely  to  prevent 
publication  altogether.^  This  would  be  a  great  mis- 
fortune to  society  ;  and  it  is  to  guard  against  this 
and  other  inconveniences,  that  society  may  fairly 
require,  as  the  price  of  its  active  protection  by  strin- 
gent enactments,  that  the  author  and  his  representa- 
tives  should   surrender  a  part  of  their  full  right  re- 


*  The  Emperor  Napoleon  is  re- 
ported to  have  stated  this  objection 
lo  a  perpetuity,  in  council,  with  his 
characteristic  practical  wisdom,  as 
follows  :  "Napoleon  dit  que  la perpii- 
tuit6  de  la  propri6t6  dans  les  families 
des  auteurs  aurait  des  inconveiiiens. 
Unc  propritie  litteraire  est  uiie  pro- 
priete  incorporelle  qui,  se  trouvant 
dans  la  suite  des  temps  et  par  le 
cours  des  successions  divis6e  entre 
une  multit\ide  d'iiidividus,  finirait, 
en  quelque  sorte,  par  ne  plus  exister 
pour  personne  ;  car,  comment  un 
grand  nombre  de  proprietaires,  sou- 
vent  eloignts  les  uns  des  autres,  et 
qui,  apres  quelques  generations,  se 
connaissent  a  peine,  pourraient-ils 
8'entendre  et  coniribuer  pour  reim- 
primer  I'ouvrage  de  leur  auteur 
communi  Cependant,  s'ils  n'y  par- 
viennent  pas,  et  qu'eux  seuls  aient 
le  droit  de  le  publier,  les  meilleurs 
livres  disparaitront  insensiblcraent 
de  la  circulation. 


"  II  y  aurait  un  autre  inconveni- 
ent non  moins  grave.  Le  progrfes 
des  lumieres  serait  arret6,  puisqu'il 
ne  serait  plus  permis  ni  de  commen- 
ter,  ni  d'annoter  les  ouvrages  ;  les 
gloses,  les  notes,  les  commentaires 
ne  pourraient  etre  s^par^s  d'un 
texte  qu'on  n'aurait  pas  la  libert6 
d'imprimer. 

"  D'ailleurs,  un  ouvrage  a  pro- 
duit  a  I'auteur  et  a  ses  heritiers  tout 
le  benefice  qu'ils  pouvcnt  naturelle- 
ment  en  attendrc,  lorsque  le  premier 
a  eu  le  droit  exclusif  de  le  vendre 
pendant  tout  sa  vie,  et  les  autres 
pendant  les  dix  ans  qui  suivent  sa 
mort. 

"  Cependant  si  I'on  veut  favoriser 
davantage  encore  la  veuve  et  les  he- 
ritiers, qu'on  porte  leur  propri^t^  k 
vingt  ans."  LocRifc,  Legislation  Ci- 
vile de  la  France,  t.  ix.  pp.  17,  18, 
19.  Renouard,  Droits  D' Auteurs, 
torn.  1,  p.  387. 


THEORY    OF    THE    RIGHTS    OF    AUTHORS. 


25 


garded  as  a  right  according  to  the  general  principles 
of  natural  justice. 

The  great  problem  in  legislation  is  to  determine 
the  point  where  this  surrender  ought  to  be  made.  It 
is  a  mixed  question  of  policy  and  justice,  with  regard 
to  which  no  positive  rule  can  be  laid  down.  The 
experience  of  nearly  all  nations,  however,  has  shown 
that  the  interests  of  literature,  as  well  as  the  dictates 
of  natural  justice,  require  that  the  children  of  an  au- 
thor should  be  secured  in  the  enjoyment  of  the  right, 
for  some  period  after  his  capacity  to  provide  for  them 
has  ceased.^ 


'  In  England,  as  the  law  now 
stands,  a  copyright  lasts  during  the 
author's  life,  and  for  seven  years 
after  his  decease ;  or  for  forty-two 
years,  in  case  the  life  is  terminated 
before  thirty-seven  years  from  the 
day  of  first  publication,  (5  &  G  Vict. 
c.  -15,  ^3.)  In  France,  the  proper- 
ty in  a  work  is  secured  to  the  author 
for  his  life,  to  his  widow  for  her 
life,  in  case  the  marriage  contract 
endows  her  with  it,  and,  after  their 
death,  to  the  cliildrcn  for  twenty 
years.  In  Holland  and  Belgium, 
the  duration  of  a  copyright  is  to  the 
author  for  his  life,  and  to  his  heirs 
and  representatives  for  twenty  years 


after  his  death.  In  Prussia,  copy- 
right lasts  for  the  author's  life,  and 
his  heirs  have  a  term  of  thirty  years 
from  his  decease.  In  Russia,  it  is 
for  the  author's  life,  and  for  twenty- 
five  years  to  the  heirs.  In  Austria, 
the  rights  of  authors  do  not  descend 
to  their  heirs.  In  Denmark,  Nor- 
way, Sweden,  and  Spain,  copyright 
is  perpetual.  Godson  on  Patents 
and  Copyright,  pp.  319,  320.  Re- 
nouard,  Droits  D'Auteurs,  torn.  1, 
p.  22G,etseq.  In  the  United  States, 
it  is  for  twenty-eight  years,  with  a 
right  of  renewal  by  the  widow  or 
children  for  fourteen  years  more. 
Act  3d  Feb.  1831,  ^^  1,  2. 


CHAPTER   I. 

HISTORY  OF  LITERARY  PROPERTY. 

The  object  of  the  present  chapter  is  to  state  suc- 
cinctly the  history  of  Literary  Property,  in  the  juris- 
prudence of  England  and  America,  from  the  earliest 
recognition  of  such  property  to  its  modern  condition. 
Our  attention  is,  of  course,  first  to  be  directed  to  its 
origin  in  England,  as  a  right  of  property  under  the 
law  of  England.  The  foundation  of  the  right  in  the 
law  of  general  justice  applicable  to  all  property,  has 
been  already  considered. 

The  term,  "  copy  of  a  book,"  has  been  used  for 
ages  in  England,  to  signify  the  sole  right  of  printing, 
publishing  and  selling  a  written  composition.^  The 
question  whether,  at  the  common  law,  the  author  of 
such  a  composition  formerly  had  a  perpetual  right 
of  property  in  his  work,  has  been  attended  with 
some  difficulty  ;  but  whoever,  at  the  present  time, 
carefully  considers  the  various  authorities    bearing 


'  Millar  v.  Taylor,  4  Burr.  Rep.  ages,  to  signify  an  incorporeal  right 

2311.     "I    use   the   word    'copy,'  to  the  sole  printing  and  publishing 

said  Lord  Mansfield  in  this  case,  '  in  of  somewhat  intellectual,  comrauni- 

ihe   technical  sense    in   which  that  ted  by  letters." 
name  or  term  has  been  used  for 


HISTORY    OF    LITERARY    PROPERTY.  27 

upon  the  question,  and  the  manner  in  which  it  came 
finally  to  be  settled  against  the  perpetual  right  of 
property,  can  have  little  doubt  that  such  a  right 
once  existed  in  England.  If  this  be  true,  it  follows 
that  subsequent  legislation,  so  far  as  it  abridged 
this  right  of  property,  took  away  what  once  belong- 
ed to  authors  by  the  common  law  of  England. 

Until  the  year  1640,  the  crown  exercised  an  un- 
limited authority  over  the  press,  which  was  enforced 
by  the  summary  powers  of  search,  confiscation,  and 
imprisonment,  given  to  the  stationers'  company, 
and  by  the  then  supreme  jurisdiction  of  the  star- 
chamber.  These  are  undoubtedly  lights  to  which 
we  should  not  turn  for  safe  guidance  upon  any  ques- 
tion of  a  public  nature,  or  to  ascertain  the  modern 
rights  of  the  subject  against  the  crown.  But  it  can- 
not escape  the  attention  of  any  one,  accustomed  to 
investigate  a  question  of  private  law,  that  if,  in  the 
period  of  the  most  arbitrary  features  that  have  at  any 
time  existed  in  the  English  constitution — features, 
of  which  it  has  now  so  divested  itself  that  we  are 
accustomed  to  speak  of  them  as  utterly  repugnant  to 
the  true  principles  of  the  constitution  —  a  matter  of 
private  right  was  held,  respected,  contemplated  and 
even  enforced,  through  that  very  jurisdiction  now 
discarded  and  justly  reprobated,  such  a  right  must 
have  historical  evidence  in  its  favor  of  grave  and 
striking  character.  Whatever  in  the  law  of  England 
concerning  justice  between  man  and  man,  has  lived 
through  those  periods  of  the  constitution  when  arbi- 


28  LAW    OF    COPYRIGHT. 

trary  power  and  prerogative  most  flourished,  when 
the  crown  exercised  powers  founded  in  scarcely  any 
discretion  but  that  of  policy  and  of  the  exigencies 
of  state,  must,  in  the  eye  of  juridical  history,  be 
deemed  of  great  value.  If  it  happens,  as  is  really 
the  case  with  regard  to  the  present  subject,  that  the 
private  right,  thus  recognized  and  assumed  to  exist 
by  the  supreme  power  in  the  state,  was  one  that  in 
no  way  conflicted  with  the  supposed  rights  or  actual 
policy  of  the  crown,  and  if  the  crown  itself  asserted 
and  enforced  rights  of  its  own  of  a  similar  character 
and  depending  upon  similar  principles,  the  testimony 
in  favor  of  the  doctrine  upon  which  the  right  is  found- 
ed is  as  clear  and  unexceptionable,  as  the  nature  of 
such  an  historical  inquiry  can  admit. 

As  early  as  the  year  1556,  decrees  and  ordinances 
of  the  star-chamber  regulated  the  manner  of  print- 
ing and  the  number  of  presses  throughout  the  king- 
dom, and  prohibited  all  printing  against  the  force  and 
meaning  of  any  of  the  statutes  or  laws  of  the  realm, 
or  of  any  injunction,  letters-patent,  or  ordinances  set 
forth  or  to  be  set  forth  by  the  grant,  commission,  or 
authority  of  the  crown. ^  The  rights  of  owners  of 
copies  were  not  here  expressly  recognized,  as  they 
afterwards  were,  except  so  far  as  they  are  implied  in 
the  prohibition  against  violating  letters  patent.^ 

'  4  Burr.  R.  2312.  of  the  right  to  print  hooks  the  sole 

*  It  will  he  seen  hereafter,  that  printing  of  which  belonged  to  the 

the  letters  patent  here  referred  to  crown,  either  by  naked  prerogative, 

were  not  grants  to  authors,  of  pro-  or  by  the  title  of  property.     Upon 

perty  in  their  own  works,  but  grants  which  of  these  two  titles  the  right 


HISTORY    OF    LITERARY    PROPERTY.  29 

By  another  decree  of  the  star-chamber,  of  the  23d 
of  June,  1585,^  every  book  was  required  to  be  licens- 
ed; and  any  one  was  forbidden  to  print  "against  the 
form  or  meaning  of  any  restraint  contained  in  any 
statute  or  laws  of  the  realm,  or  the  true  intent  and 
meaning  of  any  letters-patent,  commissions  or  pro- 
hibitions under  the  great  seal,  or  contrary  to  any 
allowed  ordinance  set  down  for  the  good  government 
of  the  stationers'  company."  That  this  decree  was 
intended  to  recognize  and  did  recognize  some  rights 
of  literary  property,  of  some  kind,  is  manifest  from 
what  took  place  in  the  next  reign.  In  the  21st  of 
James  I.  a  proclamation  of  the  25th  September,  162-3, 
recited  the  above  decree  of  the  28th  of  Elizabeth, 
and  declared  that  the  same  had  been  evaded,  amongst 
other  ways,  "  by  printing  beyond  seas  such  allowed 
books,  works  or  writings  as  have  been  imprinted 
within  the  realm  by  such  to  whom  the  sole  printing 
thereof  by  letters  patent,  or  lawful  ordinance  or  au- 
thority, doth  appertain  ;"  and  then  the  proclamation 
enforced  the  decree  referred  to.^ 

Now,  that  the  crown  did  not  interfere  in  this  man- 
ner simply  for  the  purpose  of  restraining  the  press, 
or  of  asserting  its  own  rights,  is  manifest  from  both 
the  decree  and  the  proclamation.  Private  rights  and 
private  property  are  protected  in  both.  The  kinds 
of  private  property  thus  protected  must  have  includ- 
ed more  than  the  rights  derived  by  grant  from  the 

of  the  crown  is  supposed  to  depend,         '  28  Eliz.     See  4  Burr.  R.  0312. 
will  also  be  stated.  »  4  Burr.  2312. 

3* 


30  LAW   OF    COPYRIGHT. 

crown,  because  the  words  of  the  decree  and  the  pro- 
clamation embrace  other  rights  of  "  sole  printing," 
as  well  as  rights  which  depended  on  letters-patent. 
Books,  of  which  the  copyright  was  recognized  by 
ordinance  of  the  stationers'  company,  were  included, 
and  there  is  a  fair  implication  that  books  otherwise 
appertaining  to  their  owners  by  the  "  laws"  of  the 
realm  were  also  included,  and  the  sole  right  of  print- 
ing such  books  depended  on  the  property  of  the 
author,  and  not  on  grant  from  the  crown.  But  even 
in  cases  of  letters-patent,  the  argument  which  de- 
duces the  right  from  property  in  the  crown,  is,  as 
we  shall  see,  far  stronger  than  any  other  view  of  it 
that  can  be  taken. 

There  was  another  decree  of  the  star-chamber,  of 
the  11th  July,  1637,  which  should  here  be  cited,  and 
by  which  "  no  person  was  to  print  or  import  (printed 
abroad)  any  book  or  copy  which  the  company  of  sta- 
tioners, or  any  other  person  hath  or  shall,  by  any  let- 
ters-patent, order  or  entrance  in  their  register-book, 
or  otherwise,  have  the  right,  privilege,  authority,  or 
allowance  solely  to  print."  ^ 

There  are  one  or  two  remarks  now  to  be  made 
with  reference  to  the  whole  period  from  1556  to 
1640,  at  which  time  the  star-chamber  was  abolished. 
The  judicial  proceedings  of  that  tribunal  are  suppos- 
en  to  be  chiefly  lost  or  destroyed,  and  prosecutions 
for  printing  or  pirating  another  man's  copy,  or  other- 

>  4  Burr.  2312. 


HISTORY    OF    LITERARY    PROPERTY.  31 

wise  printing  unlawl'ully,  cannot  now  be  found.  But 
it  is  obvious  that  no  man  could  print  another  man's 
copy,  because  he  could  not  obtain  a  license  so  to  do, 
for  two  reasons.  In  the  first  place,  the  literature  of 
England  was  not  then  so  extensive,  that  the  officers 
of  the  crown,  whose  duty  it  was  to  license  publica- 
tions, would  not,  generally,  know  to  whom  the  copy- 
right of  any  work  belonged,  which  any  applicant 
might  find  it  worth  while  to  reprint.  There  was, 
therefore,  little  danger  that  licenses  would  be  incau- 
tiously granted.  In  the  second  place,  the  decree  of 
28th  Elizabeth  prohibited  all  printing  "contrary  to 
any  allowed  ordinance  set  down  for  the  good  govern- 
ment of  the  stationers'  company."  Now,  although 
we  know  of  no  ordinance  or  by-law  of  the  company 
relative  to  copies,  until  after  the  year  1640,  yet  from 
1558  to  1582  there  are,  it  is  said,  entries  in  the  re- 
cords of  the  company  which  show  that  copies  were 
entered  as  property,  and  that  pirating  was  punished.^ 
This  shows  the  contemporary  opinion  as  to  this 
species  of  property,  and  renders  it  highly  probable 
that  no  license  could  have  been  obtained  for  printing 
another  man's  copy,  because  it  would  have  been  ask- 
ing for  an  authority  to  do  what  was  then  held  to  be 
immoral,  dishonest,  and  unjust.  It  is  a  just  infer- 
ence, that  what  was  so  held  by  the  stationers'  com- 

'    4  Burr.  2313.     In    1583,   two  ers' Company.     But  commissioners, 

printers.   Wolf,  and  Ward,  insisted  appointed  by  the  crown,  willed  them 

upon  a  ri^ht  of  printing  all  books,  to  desist.     See   Wedderhurn's   Ax- 

even  where  there  were  copyrights  gument  in  Tonson  v.  Collins,  1  W. 

existing.     Stowe,  223,  tit.  Station-  Black.  R.  301. 


32  LAW    OF    COPYRIGHT. 

pany,  in  that  age  a  recipient  of  royal  favor  and  of 
extraordinary  powers  from  the  crown,  would  have 
been  so  held  by  the  crown  itself.^ 

In  1640,  the  star-chamber  was  abolished,  and  all 
regulations  of  the  press  and  decrees  against  printing, 
as  well  as  all  the  charter  powers  given  to  the  sta- 
tioners' company,  were  abolished.  But  the  licen- 
tiousness that  ensued  led  the  two  houses  of  parlia- 
ment to  pass  a  new  ordinance,  which  prohibited 
printing  unless  the  book  had  been  first  licensed  and 
entered  in  the  register  of  the  stationers'  company  ; 
and  it  also  prohibited  printing  without  consent  of  the 
owner,  or  importing  (if  printed  abroad,)  upon  pain  of 
forfeiting  the  same  to  the  owner  or  owners  of  the  copies 
of  the  said  books,  &c.^ 

There  could  be  no  owners  of  copies  in  England  at 
the  time  when  this  ordinance  took  effect,  except 
those  who  held  the  right  to  print  certain  books  by 
letters-patent,  or  those  whose  title  was  that  of  au- 
thors or  proprietors  at  common  law.  It  is  not  very 
probable  that  the  parliament  of  that  day  passed  this 
part  of  the  ordinance  for  the  purpose  of  protecting 
grants  of  the  crown  ;  and  as  to  all  other  books,  the 
whole  foundation  of  literary  property,  if  it  depended 
upon  former  decrees  of  the  star-chamber  or  proceed- 
ings of  the  stationers'   company,  had   been   swept 

•  It  would   seem,  therefore,  that  much  speedier  and  more  effectual 

down  to  the  year  1010,  (as  has  been  remedy  than  actions  at  law  or  bills 

well  remarked  by  Wilies,  J.  in  Mil-  in  equity." 

lar  t;.  Taylor,)    "  copies  were  pro-         "  Passed  in  1643.     4  Burr.  2314. 

tected  and  secured  from  piracy  by  a  4  Black.  Com.  152,  note. 


HISTORY    OF    LITERARY    PROPERTY.  33 

away.  But  these  decrees  and  proceedings  were  not 
the  sources  of  the  right  of  property  ;  they  were 
merely  protective  in  their  character;  and  it  can 
therefore  admit  of  little  doubt,  that  the  understanding 
of  the  parliament  was,  that  the  property  existed  at 
common  law,  in  the  "  owners  "  whom  they  chose  to 
protect,  otherwise  this  provision  in  their  ordinance 
could  only  have  contemplated  "  owners"  by  letters- 
patent.' 

There  is,  however,  a  contemporary  testimony, 
which  places  this  matter  in  a  very  clear  light.  In 
November,  1644,  Milton  published  his  great  tract 
for  the  liberty  of  unlicensed  printing,  against  this 
ordinance,  addressed  to  the  parliament  by  whom  it 
had  been  passed.  His  vigorous  and  manly  denun- 
ciation was  directed  solely  against  the  system  of 
licensing.  He  expressly  excepts  from  his  censure 
that  part  of  the  ordinance  which  was  designed  for 
the  protection  of  the  rights  of  property  in  authors, 
and  distinctly  afhrms  that  one  of  the  "  glossing  co- 
lours" used,  to  make  the  ordinance  pass,  was  "  the 
just  retaining  of  each  man  his  several  copy,  which 
God  forbid  should  be  gainsaid."  ~ 

'  Selden  sat  in    tlic   parliament  cute  honest  and  painful  men,    ivho 

which  passed  this  ordinance.  offend  not  in  ctlhtr  of  these  particn- 

*  Milton's  "  Speech  for  the  Liberty  hrs.     But  that  otlier  clause  of  li- 

of  Unlicensed  Priiiliiifif,   to  the  par-  censing  books,   which  we   thouiiht 

liament  of  Eufrland."     Lie  had  pre-  had  died  \viih  his  brother   quadra- 

viously  said,   "  For  that  part  which  gesimal  and   matrimonial  when  the 

preserves  justly  cvenj  man's  cop  1/  to  prelates  expired. — I  shall  now  at- 

himsclf,  or  provides  for  the  poor,  I  tend  with  such   a  homily,  as  shall 

touch  not :  only  wish  tliey   be  not  lay  before  ye,"  &c.     .     .     . 
made  pretences  to  abuse  and  perse- 


34 


LAW    OF    COPYRIGHT. 


The  testimony  of  Milton  must  be  allowed  to  have 
some  weight  upon  this  question.  He  knew  the  state 
of  the  literature  of  England,  if  any  man  knew  it,  and 
he  cannot  be  supposed  to  have  thus  recorded  the 
general  recognition  of  the  rights  of  authors,  and  to 
have  thus  expressly  admitted  what  the  ordinance 
was  intended,  by  the  provision  in  question,  to  pro- 
tect, without  knowing  of  what  he  affirmed.^  Many 
of  the  arguments  used  by  him  against  the  licensing 
system  also  show,  incidentally,  that  the  ordinance, 
when  it  spoke  of  "owners,"  must  have  contemplated 
proprietors  of  books,  of  which  the  public  might  de- 
mand successive  editions ;  for  his  arguments  show 
—  as  indeed,  we  know  without  resorting  to  them,  — 


'  Milton  spoke  upon  this  occasion 
in  the  name  and  at  the  solicitation 
of  the  scholars  of  England.  "  I 
might  say,  if  without  envy,  that  he 
whom  an  honest  quaestorship  had 
endeared  to  the  Sicilians,  was  not 
more  by  them  importuned  against 
Verres,  than  the  favorable  opinion 
I  had  among  many  who  honor  ye, 
and  are  known  and  respected  by  ye, 
loaded  me  with  entreaties  and  persua- 
sionx,  that  I  would  not  despair  to 
lay  together  that  which  just  reason 
should  bring  into  my  mind,  toward 
the  removal  of  an  undeserved  thral- 
dom upon  learning.  That  this  is 
not,  therefore,  the  disburdening  of  a 
particular  fancy,  but  the  common 
grievance  of  all  those  who  had  pre- 
pared their  minds  and  studies  above 
the  vulgar  pitch  to  advance  truth  in 
others,  and  from  others  to  entertain 
it,  thus  much  may  .satisfy.  And  in 
their  name  I  shall,  for  neither  friend 
nor  foe,  conceal  what  the  general 
murmur  is." 


Lord  Mansfield  has  said,  that  "  the 
single  opinion  of  Milton,  speaking 
after  much  consideration  to  what 
had  been  the  general  consent  of  the 
kingdom  for  ages,  is  stronger  than 
any  inferences  that  can  be  drawn 
from  gathering  acorns  or  seizing  on 
a  vacant  piece  of  ground."  4  Burr. 
2399.  It  is  curious  that,  in  nearly 
a  century  after  Milton's  opinion  was 
thus  recorded,  his  own  Paradise 
Lost,  in  the  hands  of  the  assigns  to 
whom  the  sum  of  £5  had  passed  it 
from  him  and  his  heirs  forever,  was 
to  come  before  the  chancellor  of 
England,  to  claim  successfully  for 
its  then  owners  their  right  in  their 
"several  copy."  But  his  great 
authority  does  not  seem  to  have 
been  alluded  to  upon  that  occasion. 
Tonson  v.  Walker,  before  Lord 
Hardwicke,  in  1739.  Cited  4  Burr. 
2325,  and  3  Swanst.  673. 


HISTORY    OF    LITERARY    PROPERTY.  35 

that  such  books  were  then  proportionally  not  more 
rare  in  the  literature  of  England  than  they  now  are.^ 

In  1649,  the  long  parliament  made  an  ordinance, 
which  forbids  printing  any  book  legally  granted,  or 
any  book  entered,  without  consent  of  the  owner ^  upon 
pain  of  forfeiture,  &c. 

In  1662,  the  licensing  act  of  13  and  14  Car.  II. 
was  passed,  prohibiting  the  printing  of  any  book 
unless  first  licensed  and  entered  in  the  register  of 
the  stationers'  company,  and  prohibiting  also  the 
printing  without  consent  of  the  owiw^  upon  pain  of 
forfeiting  the  book  and  65.  Qd.  for  each  copy,  half  to 
the  king,  half  to  the  owner  ;  to  be  sued  for  by  the 
owner  in  six  months. 

It  is  remarkable  that  there  had  been  thus  far  no 
legislation  in  England,  which  grants,  creates,  or  es- 
tablishes the  property  of  an  author  in  his  own  works. 
The  liberty  of  publishing,  and  sometimes  the  presses 
which  he  should   employ,   had   been   subjected   to 

'  "  And  what  if  the  author  shall  (and  who  knows  whether  it  might 
be  one  so  copious  of  fancy,  as  to  not  be  the  dictate  of  a  divine  spirit?) 
have  many  things  well  worth  the  yet  not  suiting  with  every  low  de- 
adding  come  into  his  mind  after  crepit  humour  of  their  own,  though 
licensing,  while  the  book  is  yet  un-  it  were  Knox  himself,  the  reformer 
der  the  press,  which  not  seldom  of  a  kingdom,  that  spake  it,  they 
happens  to  the  best  and  diligentest  will  not  pardon  him  their  dash  ;  the 
writers  ;  and  that  perhaps  a  dozen  sense  of  that  great  man  shall  to  all 

times  in  one  book Nay,  posterity  be  lost,  for  the  fearfulness, 

which  is  more  lamentable,   if  the  or  the  presumptuous  rashness  of  a 

workof  any  deceased  author,  though  perfunctory  licenser.     And  to  what 

never  so  famous  in  his  lifetime,  and  an   author  this  violence  hath  been 

even  to   this   day,  comes   to   their  lately  done,   and  in  what  book  of 

hands  for  licence  to  be    printed,  or  greatest  consequence  to  be  faithfully 

reprinted,  if  there  be   found   in  his  published,    I   could    now    instance, 

book  one  sentence  of  a  venturous  but  shall  forbear  to  a  more  convc- 

edge,  uttered  in  the  height  of  zeal,  nient  season." 


36  LA.W    OF    COPYRIGHT. 

regulation  and  control  ;  but  from  the  introduction 
of  printing  to  the  fourteenth  year  of  the  reign  of 
Charles  II.  it  had  been  assumed  that  the  author  of 
a  book  has  a  property  in  his  copy,  and  successive 
parliaments  had  provided  for  his  protection  as  an 
"owner,"  without  undertaking  to  confer  that  char- 
acter upon  him.  The  state  of  the  literature  of 
England  in  1662  will  show  that  when  parliament 
provided  for  the  protection  of  "  owners,"  they  could 
not  have  intended  merely  the  royal  patentees,  pass- 
ing by  the  whole  existing  body  of  literature  then 
known  by  every  intelligent  Englishman,  at  least  by 
name.  The  legislators  of  that  day  may  also  be  pre- 
sumed at  least  to  have  known  that  there  were  living 
authors  then  writing  and  publishing,  not  without 
fame  and  honor  in  the  land. 

The  licensing  act  of  Charles  II.  was  continued  by 
several  acts  of  parliament,  but  expired  on  the  9th  of 
May,  1679.^  In  1681,  all  legislative  protection  hav- 
ing ceased,  the  stationers'  company  adopted  an  ordi- 
nance or  by-law,  which  recites  that  several  members 
of  the  company  have  great  part  of  their  estates  in 
copies  ;  that  by  ancient  usage  of  the  company,  when 
any  book  or  copy  is  duly  entered  in  their  register  to 
any  member,  such  person  hath  always  been  reputed 
and  taken  to  be  proprietor  of  such  book  or  copy, 
and  ought  to  have  the  sole  printing  thereof.     The 

•  In  this  year,  an  action  on  the  leged  himself  to  be  the  true  proprie- 
case  was  brougiit  in  the  king's  tor.  Ponder  v.  Brady),  Lilly's  En- 
bench,  for  printing  the  Pilgrim's  tries,  07.  But  it  does  not  appear 
Progress,  of  which  the  plaintifF  al-  whether  the  action  was  proceeded  in. 


HISTORY    OF    LITERARY    PROPERTY.  37 

ordinance  then  further  recites  that  this  privilege  and 
interest  had  of  late  been  often  violated  and  abused  ; 
and  then  it  provides  a  penalty  against  such  violation 
by  any  member  or  members  of  the  company,  where 
the  copy  had  been  duly  entered  in  their  register. 
The  true  view  of  this  ordinance  would  seem  to  be, 
that  the  members  of  the  stationers'  company,  finding 
their  estates  in  copies,  which  belonged  to  them  by 
the  common  law,  no  longer  under  the  protection  of 
the  licensing  act,  the  repeal  of  which  had  incidentally 
withdrawn  the  protection  that  had  always  been  in- 
serted in  it,  though  it  had  necessarily  no  connection 
with  the  system  of  licensing,  undertook  to  provide 
for  the  failure  of  legislation,  as  far  as  they  could,  by 
an  ordinance  applicable  of  course  to  their  own  mem- 
bers only.  The  ordinance  is  not  to  be  cited  as  any 
other  proof  of  what  the  common  law  right  was,  than 
as  it  shows,  in  connection  with  other  historical  proofs, 
how  it  was  then  supposed  to  be.  Now  I  do  not 
understand  this  ordinance  to  rest  the  exclusive  right 
upon  entry  in  the  register  book,  or  upon  their  usage 
to  respect  each  other's  rights  as  derived  merely 
from  entry.  It  declares,  as  a  separate  and  distinct 
inducement,  that  "several  members  of  this  com- 
pany have  great  part  of  their  estates  in  copies.^'  By 
"  estates"  must  have  been  meant  their  capital  ;  and 
"  copies  "  they  must  have  intended  to  use  in  the  an- 
cient technical  sense  of  the  sole  right  to  print  parti- 
cular books.  This  right  existed,  if  at  all,  by  the 
law  of  England,  and  not  by  the  usage  of  the  station- 


38  LAW    OF    COPYRIGHT. 

ers'  company,  whose  members  could  have  individu- 
ally no  different  rights  of  property  from  all  the  rest 
of  the  king's  subjects.  If  a  member  of  the  station- 
ers' company  held  a  "copy,"  any  other  man  in  Eng- 
land, not  a  member  of  that  corporation,  could  also 
hold  a  "  copy."  But  as  a  further  inducement  to  the 
provision  of  a  penalty  upon  their  own  members 
against  violating  the  rights  of  another  member,  they 
recited  the  ancient  usage  of  the  company  to  respect 
these  rights  when  brought  to  the  notice  of  the  com- 
pany, by  entry  in  their  register.  It  was  much  the 
same  as  if  an  association  of  persons  were  to  agree 
that  any  one  of  their  number  should  pay  a  penalty 
for  violating  the  acknowledged  rights  of  property  of 
any  other  person  in  the  association,  provided  such 
rights  were  duly  entered  in  their  common  records. 
It  would  not  be  an  attempt  to  create  the  right  ;  but 
it  would  justly  be  regarded  as  an  acknowledgment 
of  the  existence  of  such  a  right. 

The  licensing  act  of  Charles  II.  was  revived  in 
the  1st  of  James  II.  c.  7,  and  continued  by  4  W.  &, 
M.  c.  24,  and  finally  expired  in  1694.  In  this  last 
year,  the  stationers'  company,  apparently  with  the 
same  view  of  supplying,  as  far  as  related  to  them- 
selves, the  failure  of  legislative  protection,  passed  a 
similar  ordinance,  or  by-law,  in  a  slightly  different 
and  stronger  phraseology.  The  same  observations 
apply  to  this  ordinance  as  to  that  of  1681.^ 

'  The  two  ordinances  are  recited     in   Millar    v.   Taylor,  4   Burr.   R. 
at  large  in  the  special  verdict  found    2303. 


HISTORY    OF    LITERARY    PROPERTY.  39 

Having  now  brought  the  history  of  private  copy- 
right down  to  the  Revolution  of  1688,  it  is  necessary 
here  to  turn  back  to  survey  a  collateral  and  impor- 
tant branch  of  the  subject,  the  prerogative  copies. 

From  the  first  introduction  of  printing,  it  was  con- 
sidered to  be  a  matter  of  state.  The  reasons  upon 
which  it  was  so  regarded  were  various.  It  was  held 
to  be  a  matter  of  a  public  nature  ;  that  it  was  a  new 
art  introduced  by  the  king,  and  therefore  he  had  a 
prerogative  right  to  prescribe  the  persons  who 
should  exercise  it ;  and  that  the  unrestrained  liberty 
of  printing  was  dangerous.  These  reasons  were 
from  time  to  time  advanced  as  the  foundation  for  that 
control  exercised  over  the  press  from  its  first  intro- 
duction to  the  year  1688.^  But  there  were  also  cer- 
tain other  special  reasons  assigned  for  the  exclusive 
right  claimed  by  the  crown  in  certain  publications, 
and  granted  to  individuals  by  letters-patent,  w^hich 
have  been  justly  supposed  to  proceed  upon  the  notion 
of  property.  At  the  same  time  it  must  be  admit- 
ted, that  with  the  idea  of  property  was  also  advanced 
the  claim  of  naked  prerogative,  resting  upon  reasons 
of  state  ;  and  it  is  not  very  easy  to  distinguish,  upon 
the  earlier  authorities,  tvhat  the  precise  grounds 
were,  on  which  the  courts  intended  to  rest  the  title 
to  the  various  prerogative  copies.  In  the  main,  how- 
ever, this  class  of  cases  undoubtedly  does  show  that 
the  crown  sometimes  claimed  a  property  in  copies 

1  Bacon's  Abridgment,  tit.   Pre-     75.  Skin.  231.     Yern.  275. 
rogative,  F.  5.    Carter,  'JO.    3  ]Mod. 


40  LAW    OF    COPYRIGHT. 

entirely  analogous  to  that  belonging  to  private  indi- 
viduals. 

The  works  that  have  been  at  different  times  claim- 
ed as  belonging  to  the  crown,  are  all  law  books,  in- 
cluding the  Reports  and  the  Statutes,  Almanacs,  the 
Latin  Grammar,  the  Book  of  Common  Prayer,  and  the 
English  translation  of  the  Bible.  The  earliest  case, 
of  which  we  have  any  distinct  account,  was  between 
a  Colonel  Atkyns  and  certain  members  of  the  sta- 
tioners' company,  in  the  18th  Charles  II.  Atkyns, 
as  the  law-patentee,  claimed  the  right  to  print  all  law 
books ;  the  defendants  had  printed  Rolle's  Abridg- 
ment. A  bill  was  brought  for  an  injunction,  which 
the  lord  chancellor  granted  against  all  the  members 
of  the  stationers'  company.  An  appeal  was  taken  to 
the  house  of  lords,  and  it  was  there  argued  upon  the 
footing  of  the  king's  property  in  law  books,  because 
he  pays  the  judges  who  pronounced  the  law ;  and 
the  decree  of  the  lords,  affirming  the  decree  below, 
has  always  been  cited  as  a  recognition  of  the  copy- 
right in  the  king,  though  of  course  the  claim,  in  its 
full  extent,  has  been  since  exploded.^ 

The  next  case  was  that  of  Roper  v.  Streater,  in 
the  22d  -  24th  Charles  II.  Roper  bought  of  the  ex- 
ecutors of  Mr.  Justice  Croke  the  third  part  of  his 
Reports.  Streater  was  law-patentee,  and  printed 
these  Reports  "over  Roper,"  who  brought  an  action 
of  debt  against  him  on  the  licensing  act  of  13th  and 
14th  Charles  II.     Streater  pleaded  the  king's  grant, 

'  Carter,  89.     Bacon's  Abridg.  Prerogative,  F.  5.     4  Burr.  2315. 


HISTORY    OF    LITERARY    PROPERTY.  41 

and  the  demurrer  therefore  presented  the  question 
between  the  crown  and  a  purchaser  of  the  author. 
In  short,  the  question  was,  whether  the  king  or  the 
plaintiff  was  the  "owner"  of  these  Reports,  in  the 
sense  of  the  statute.  In  the  king's  bench,  judgment 
was  for  the  phiintiff  and  against  the  king's  patent  ; 
the  court  considering  the  plaintiff^  as  owner  of  the 
copy  at  common  law  by  purchase  of  the  executors 
of  the  author.^  This  judgment  was  reversed  in 
the  house  of  lords,  upon  the  ground  that  the  king 
was  the  owner  of  the  copy,  and  therefore  that  the 
executors  of  the  author  could  convey  nothing." 

The  case  of  the  Stationers'  Company  v.  Seymour, 
in  the  29th  Charles  II.  was  a  question  between 
certain  grantees  of  the  crown  and  certain  other 
persons  who  had  printed  Gadsbury's  Almanac.  The 
court  put  their  decision,  in  part,  upon  the  fact,  that 
an  almanac  has  no  certain  author,  and  that  the 
property  of  such  books  is  in  the  king.  The  defend- 
ants claimed  to  have  added  "prognostications"  to 
the  old  almanac;  but  the  court  said  "these  additions 
did  not  alter  the  case,  no  more  than  if  a  man  should 
claim  a  property  in  another  man's  copy,  by  reason  of 
some  inconsiderable  additions  of  his  ow^n."  ^  The  rea- 
son Avas  also  assigned  that  the  defendant's  almanac 
was  the  same  as   that  printed  before    the  book  of 

'  Skinner,    234.       1  JMod.    257.  Sec  Bacon,  ut  sup.  and  the  report 

Bac.  Abr.   Prerog.   F.  5.     4  Burr,  in  Skinner,  234. 
2316.  3  1  Mod.  25G.     Bacon's  Abridg. 

*  Ibid.     Il  seems,  however,  thnt  Prerog.  F.  5.     4  Burr.  2317. 
reasons  of  state  were  also  assigned. 
4* 


42  LAW    OF    COPYRIGHT. 

common  prayer,  which  regulates  the  feasts  of  the 
church,  and  therefore  it  trenched  upon  that  part  of 
the  prerogative  which  concerns  the  government  of 
the  church.^ 

There  was  also  a  case  of  the  Stationers'  Company 
V.  Parker,  in  1  Jac.  2.  It  does  not  appear  what  the 
book  in  controversy  was,  but  the  question  was  be- 
tween concurrent  patentees,  and  whether  the  plain- 
tiffs patent  excluded  the  defendant's.^  Holt,  arguing 
for  the  defendant,  agreed  that  the  king  had  power  to 
grant  the  printing  of  books  concerning  law  or  reli- 
gion, and  admitted  it  to  be  an  interest,  but  not  a  sole 
interest.  The  court  inclined  for  the  defendant,  but 
reserved  the  question  for  advisement.^ 

There  is  no  case  in  the  books  concerning  the  Latin 
Grammar,  but  the  right  of  the  king  was  grounded  on 
the  allegation,  that  he  paid  for  compiling  and  pub- 
lishing it.^  Nor  is  there  any  reported  case  prior  to 
the  Revolution  concerning  the  Bible,  but  that  was 
vested  in  part  upon  the  ground  that  the  king  paid 
the  translators  ;  and  with  regard  to  the  Year  Books, 
it  was  said,  that  the  crown  was  at  the  expense  of 
taking  the  notes.^     The  further  history  of  the  pre- 


■  1  Mod.  250.     Bacon's  Abridg.  says,    that  the  exclusive   right   of 

Prerog.  F.  5.     4  Burr.  2317.  printing  the  translation  of  the  Bible 

'^  The  work  was  undoubtedly   a  is    founded    upon    these   two   prin- 

law  book.  ciplcs,   combined,  viz.   1.   That  the 

'  Stationers'  Co.  v.  Parker,  Skin-  king   is   the  supreme  head  of  the 

ner,  233.  church  ;  and  2.  That  it  was  trans- 

*  4  Burr.  2329.     This  notion  is  latcd  at  the  expense  of  the  crown, 
now  of  course  abandoned.  2  Black.  Com.  410. 

*  4  Burr.  2329,2401.  Blackstone 


HISTORY    OF    LITERARY    PROPERTY.  43 

rogative  copies  will  be  pursued  in  their  connection 
with  the  general  course  of  the  subject/ 

The  cases  which  have  now  been  cited,  have  been 
considered  by  very  great  authorities  as  proofs  that 
the  right  of  the  crown,  in  certain  copies,  was  regarded 
as  a  right  of  property  of  the  same  kind  as  that  of  au- 
thors.^ But  if  they  do  not  show,  that  the  right  of 
the  crown  was  a  right  of  property  merely,  and  if  the 
high  notions  of  prerogative  entertained  at  the  time 
entered  into  these  decisions  and  affected  them  with 
reasons  of  religion  or  state,  as  is  quite  probable,  then 
there  is  an  argument  to  be  drawn  from  them  of  great 
weight  in  favor  of  the  existence  of  a  common  law 
right  of  property  in  authors,  as  a  right  understood  at 
the  times  when  these  decisions  were  made.  These 
cases  were  decided  before  the  Revolution,  at  which 
it  seems  obviously  proper  to  pause  as  at  a  stage  in 
the  inquiry.  Notions  of  power  and  prerogative  were 
then  held  and  acted  upon,  such  as  could  not  be 
breathed  at  the  present  day  in  Westminster  Hall, 
and  the  press  had  long  been  under  the  almost  abso- 
lute control  of  the  crown.  Yet,  in  such  a  period,  it 
was  felt  to  be  necessary  to  argue  in  support  of  the 


'  See  post,  ch.  2.  lication.     The  kind  of  property  in 

*  Per  Lord  Mansfield  Ch.  J.  and  the  crown,  or  a  patentee  Irom  the 

Willes,  J.  in  Millar  v.   Taylor,   4  crown,  is  just  the  same  ;  incorporeal, 

Burr.  2317,2401.    Lord  Mansfield's  incapable  of  violation  but  by  a  civil 

remarks  upon  these  cases  are  very  injury,  and  only  to  be  vindicated  by 

cogent.    He  considered  that  ^^  crown  the  same  remedy,  as  an  action  upon 

copies  are,  as  in  the  case  of  an  au-  the  case,  or  a  bill  in  equity."  Yates  J. 

thor,  civil   property;  which   is  de-  in  the  same  case,  who  dissented,  held, 

duced,  as  in  the  case  of  an   author,  that  the  crown  copies  were  founded 

from  the  king's  right  of  original  pub-  on  reasons  of  state  or  religion. 


44  LAW    OF    COPYRIGHT. 

right  of  the  crown  by  analogy  to  the  right  of  the 
subject  ;  and  the  courts  not  only  recognized  the 
analogy,  but  wherever  the  particular  publication 
afforded  the  least  color  for  the  claim  as  a  claim  of 
property,  they  always  took  care  to  rest  the  king's 
copy  upon  the  same  grounds  that  would  have  esta- 
blished the  right  in  a  private  person.  Fictions  were 
resorted  to,  as  in  the  case  of  the  Latin  Grammar,  in 
order  that  the  right  of  the  king  might  stand  upon 
property.  All  this  shows  that  there  existed  at  that 
time  a  right  of  property  in  copies,  growing  out  of 
authorship,  so  well  settled,  so  universally  received 
and  acted  upon,  and  so  thoroughly  established  in  the 
notions  of  the  profession  and  the  public,  that  the 
crown  was  forced  to  borrow  the  aid  of  its  analogies, 
and  to  claim  upon  the  same  title,  as  that  which  pro- 
tected a  sermon  or  a  poem. 

The  proprietors  of  copies  applied  to  parliament  in 
1709,  for  an  act  more  effectually  to  secure  their  pro- 
perty forever,  by  what  they  thought  a  more  adequate 
remedy  than  any  that  had  then  been  used.  It  seems, 
that  no  one  had  then  supposed  that  a  bill  would  lie 
for  an  injunction  and  relief  in  equity.^  But  the  com- 
mon law  remedy  of  an  action  was  understood,  though 
it  was  justly  regarded  as  totally  inadequate,  both  be- 
cause of  the  difficulty  of  proving  all  the  actual  dam- 
ages, and  because  "  the  defendant  was  always  a  pau- 
per."^    The  petitioners  therefore  prayed,  that  con- 

'  Millar  v.  Taylor,  4  Burr.  2.'il7,         ^  So  assicned  in  the  petition  of 
2405.     Vern.220,  275.  the  booksellers.    4Burr.  ii3l8.    Al- 


HISTORY    OF    LITERARY    PROPERTY.  45 

FiscATiON  of  the  counterfeit  copies  might  be  made  one 
of  the  penalties.  This  led  to  the  Statute  8  Anne, 
c.  19,  passed  in  1709.' 

The  preamble  of  this  act  is  worthy  of  attention. 
It  is  as  follows  :  "  Whereas  printers,  booksellers, 
and  other  persons  have  of  late  frequently  taken  the 
liberty  of  printing,  reprinting,  and  publishing,  or 
causing  to  be  printed,  reprinted  and  published  books 
and  other  writings  without  the  consent  of  the  authors 
or  proprietors  of  such  books  and  writings  to  their 
very  great  detriment,  and  too  often  to  the  ruin  of 
them  and  their  families  ;  for  preventing  therefore 
such  practices  for  the  future,  and  for  the  encourage- 
ment of  learned  men  to  compose  and  write  useful 
books;  be  it  enacted,"- Slc.  The  first  section  of 
the  act  then  provides,  that  after  the  10th  of  April, 
1710,  the  authors  of  books  already  printed,  who  have 
not  transferred  their  rights,  and  the  booksellers,  &c. 
who  have  purchased  copies,  shall  have  the  sole  right 
of  printing  them  for  the  term  of  tw^enty-one  years ; 
and  the  authors  of  books  already  composed  and  not 
printed,  or  thereafter  to  be  composed,  and  their  as- 
signs, shall  have  the  sole  right  of  printing  the  same 
for  fourteen  years  ;  with  a  penalty  and  forfeiture  for 
printing  without  consent  of  the  proprietor.^     The 

though  there  was  no  precedent  of  a  Act  for  the  encouragement  of  leam- 

common  law  action  tried,  yet  that  it  ing,  by  vesting  tlie  copies  of  printed 

was  universally  held  that  an  action  books  in  the  authors  or  purchasers 

at  common  law  would  lie  is  appa-  of  such  copies,   during    the  times 

rent  from  this  petition.  therein  mentioned." 

'  See  Appendix,  p.  1.  '8  Anne,  c.  19. 

*  The  title  of  the  act  is,  "  An 


46  LAW    OF    COPYRIGHT. 

second  section  declares  that  the  books,  the  property 
of  which  is  intended  to  be  "  secured"  by  this  act 
are  such  as  shall,  before  publication,  have  been  en- 
tered at  Stationers'  Hall. 

It  is  now  necessary  to  trace  the  history  of  the 
subject  in  the  courts,  after  the  passage  of  this  act, 
until  the  year  1769  ;  in  order  to  see  whether  this 
statute  was  considered  as  the  source  of  literary  pro- 
perty, or  whether  in  fact  literary  property  was  held 
to  depend  upon  principles  of  the  common  law  known 
and  received  before  and  independent  of  the  statute. 

There  are  two  classes  of  cases,  within  the  period 
now  under  consideration,  both  of  which  have  pro- 
ceeded upon  the  author's  right  of  property  indepen- 
dent of  the  statute.  The  first  class  is  that  of  books 
or  other  writings  after  publication  ;  the  second  class 
embraces  manuscripts  before  publication. 

1.  The  question  as  to  the  common  law  right,  with 
reference  to  old  copies,  after  publication,  could  only 
arise  after  the  full  term  of  the  act  of  Anne  had  passed, 
that  is,  at  the  end  of  twenty-one  years  from  the  tenth 
of  April,  1710,  or  after  the  tenth  of  April,  1731. 
From  this  time  until  the  case  of  Tonson  v.  Collins, 
in  the  king's  bench  in  1761,  the  court  of  chancery 
exercised  a  jurisdiction  by  injunction,  in  which  the 
antecedent  right  of  property  must  have  been  the  right 
to  which  the  court  granted  its  protection. 

The  first  case  was  one  before  Sir  Joseph  Jekyll,  as 
master  of  the  rolls,  in  1735,  in  which  he  granted  an 
injunction  against  printing  the  Wlwle  Duty  of  Man. 


HISTORY    OF    LITERARY    PROPERTY.  47 

This  book  first  appeared  in  1657,  and  tlie  statutory 
term  had  passed.  The  right  of  the  plaintiff  there- 
fore could  only  have  been  the  general  right  of  pro- 
perty.^ In  the  same  year  also,  (1735)  Lord  Talbot 
granted  an  injunction  against  printing  Pope's  and 
Swift's  Miscellanies,  many  of  which  were  originally 
published  before  the  statute.^ 

In  1736,  Sir  Joseph  Jekyll  granted  a  third  injunc- 
tion against  printing  Nelson's  Festivals  and  Fasts,  a 
book  first  published  in  1703.^ 

In  1739,  Lord  Hardwicke  granted  a  fourth  injunc- 
tion against  printing  Milton's  Paradise  Lost,  the  title 
to  which  the  plaintiffs  derived  under  an  assignment 
made  by  the  poet  in  1667."* 

In  1751,  Milton's  poem  again  came  before  Lord 
Hardwicke,  in  an  application  for  an  injunction  to  re- 
strain the  defendant's  printing  an  edition  of  the  poem 
with  the  notes  of  Dr.  Newton  and  other  commenta- 
tors, all  of  which  belonged  to  the  plaintiffs.  The  bill 
derived  a  title  to  the  poem  by  the  author's  assign- 
ment in  1667,  to  the  life  by  Fenton,  published  in 
1727,  to  Bentley's  Notes,  published  in  1732,  and  to 
Dr.  Newton's  Notes,  published  in  1749.  The  de- 
fendants put  in  an  answer  immediately,  and  set  up 

'  EjTe  V.  Walker,  cited  4  Uurr.  the  objection  that  the  statute  term 

2325  ;  3  Swanst.  073.     Sir  Joseph  had  expired. 

Jekyll  sat    in  parliament  when  the        ^  Walthoe  v.   Walker,   cited  ut 

act  of  Anne  was  pa.ssed.  supra. 

*  Mottc  V.  Falkncr,  cited  in  Mil-        "  Tonson    v.   Walker,   cited,    ut 

lar  V.  Taylor,  1  IJurr.  2325,  and  in  supra.     At  the  date  of  this  iiijunc- 

Tonson  v.  Walker,  3  Swanst.  673.  tion,  the  term  of  twenty-one  years 

LordAIansfield,  (1  W.  Blackst.  331)  secured  by  the  statute  to  old  copies, 

said  that  this  case  was  argued  on  had  been  exhausted  for  eight  years. 


43  LAW    OF    COPYRIGHT. 

notes  of  their  own,  of  which  it  appeared  there  were 
twenty-eight  ;  while  the  notes  of  the  other  commen- 
tators belonging  to  the  plaintiffs,  and  included  in  the 
defendant's  edition,  numbered  fifteen  hundred.  Lord 
Hardwicke  gave  judgment  in  1752,  and  held  that  the 
plaintiff's  notes  were  within  the  protection  of  the 
statute  ;  and  as  to  the  poem,  although  he  said  that 
the  general  question  had  never  been  determined  and 
there  was  a  doubt,  yet  he  granted  an  injunction  until 
the  hearing  against  printing  the  poem,  the  life,  and 
all  the  notes  that  had  been  combined  by  Dr.  New- 
ton.^ When  the  authority  of  this  case  came  to  be 
afterwards  considered  in  the  king's  bench,  in  the 
time  of  Lord  Mansfield,  his  lordship,  and  the  rest  of 
the  judges  who  concurred  with  him,  had  no  doubt  as 
to  the  real  opinion  of  Lord  Hardwicke,  and  they 
attributed  his  suggestion  of  a  doubt  to  his  great  de- 
cency and  prudence  in  not  acting  decisively  upon  a 
question  of  law,  on  which  a  doubt  had  been  raised, 
and  which  had  not  been  settled  in  a  court  of  com- 
mon law  since  the  statute.^ 


'  Tonson  i;.  Walker,  3  Swanst.  on  to  say  that  in  the  cases  of  crown 

073.  copies  the   general   argument  had 

^  Millar  V.  Taylor,  4  Burr.  2327,  been,  that  the  books  were  made  at 
2403,  2404.  There  is  very  little  rea-  the  expense  of  the  crown,  and  there- 
son  to  doubt  what  Lord  Ilardwicke's  fore  the  property  is  in  the  crown  ; 
opinion  was,  if  the  report  of  what  fell  and  that  these  cases  are  used  as 
from  him,  (in  the  case  of  Tonson?^.  tending  to  prove  a  general  right  in 
Walker,  in  3  Swanst.)  be  correct,  and  the  author.  (3  Swanst.  680.)  Willes, 
there  is  good  reason  to  believe  it  to  J.  in  Millar  v.  Taylor,  quoted  Lord 
be  so.  He  granted  the  injunction  as  Hardwicke  as  saying,  "  these  argu- 
to  the  poem  until  the  matter  could  be  ments  being  allowed  to  support  that 
considered  at  the  hearing,  because  right  [of  the  crown]  infer  such  a 
there  was  a  "  probability  of  right  in  properly  existing.'"  (4  Burr.  2327.) 
the  plaintiffs ;  "    and  he  then  went  Lord  Mansfield    added,   "I  heard 


HISTORY    OF    LITERARY    PROPERTY.  49 

All  these  injunctions  were  submitted  to ;  and 
Lord  Mansfield  said  of  them,  that,  although  they  were 
not  granted  upon  a  final  hearing,  yet  he  looked  upon 
them  as  equal  to  any  final  decree,  "  for  the  judicial 
opinions  of  the  great  men  who  granted  these  injunc- 
tions, in  cases  clearly  not  w^ithin  the  statute,  uncon- 
tradicted by  any  book,  judgment,  or  saying,  must 
weigh  in  any  question  of  law  ;  much  more,  in  a  ques- 
tion of  mere  theory  and  speculation  as  to  what  is 
agreeable  or  repugnant  to  natural  principles.''  ^ 

2.  The  cases  of  injunctions  against  printing  sur- 
reptitiously from  unpublished  manuscripts  proceeded 
upon  the  admitted  doctrine  that  every  author  has  a 
property  in  his  own  writings  before  publication  ;  and 
it  is  diflicult  to  say,  that  the  argument,  which  proves 
a  property  before  publication,  does  not  equally 
prove  a  property  in  the  same  writing  after  publica- 
tion.~     But  without  considering  at  present  the  ques- 

Lord  Ilardwicke  say  what  Mr.  Jus-  ment,    &c.     The   court   of   king's 

tice  Willes  has  quoted,  as  to  these  bench  held  that  the  ris^ht  was  con- 

arsjuments  from  property  in  support  current  in  the  plaintiff  and  the  uni- 

of  the  kiniT^s  riijht  necessarily  infer-  \ersity,  exclusive  of  all  ot/ur  persons, 

ling  an  aut/tor's.^'     (I  Burr.  "ilOS  )  The  case  is  a  full  authority  for  the 

He  also  pointed  out,  thai  at  the  time  position   that  the   king's   copy  cun- 

when  liOrd  Hardwicke  used  this  ar-  tinues  after  publication,  at  common 

gument,  the  question  was  depending  law  ;   and   we  have   seen   that   the 

in  the  king's  bench  in  a  case  sent  great  effort  always  was  to  make  the 

there    by    him    for    determination,  kmg's  copy   depend   upon  property 

This  was  the  case  of  Maskett  v.  The  like  that  of  the  subject.     See  Lord 

University  of  Cannbridge,   (I  lil.ick.  Matisfield's  remarks  in  4  Burr.  -J  101, 

R.    10.5,)    sent    from   the   court   of  2404.     See   also    Baskett   r.    C'un- 

chancery  in    1743;     but  it  lay  dor-  ingham,  1  Black.  R.  370  ;    2  Eden, 

mant  for  many  years,  and  the  judges'  137. 

certificate    was    not    granted    until  '  4  Burr.  239i). 

1758.     it  was  a  question  between  *  Lord  Mansfield  rejected  the  idea 

rival  patentees  of  the  crown,  with  of   any   distinction.      See   4    Burr. 

regard   to   printing   acts  of  parlia-  2397. 
5 


50  LAW    OF    COPYRIGHT. 

tion,  Avhetlier  publication  is  a  dedication  or  abandon- 
ment to  the  public  of  an  author's  property  in  his  own 
work,  it  is  important  here  to  state  historically  the 
jurisdiction  that  was  exercised  in  the  period  now  un- 
der consideration,  with  regard  to  manuscripts. 

In  1732,  Sir  Joseph  Jekyll,  on  a  bill  filed  by  the 
son  of  Mr.  Webb,  a  conveyancer,  granted  an  injunc- 
tion against  a  person  who  was  intending,  without 
authority,  to  print  the  draughts  left  by  Mr.  Webb  in 
manuscript.^     The  injunction  was  acquiesced  in. 

In  1741,  in  Forrester  ?;.  Waller,  there  was  another 
injunction  granted  against  printing  the  plaintiff's 
notes,  obtained  surreptitiously,  without  his  consent.^ 

In  the  same  year,  also,  in  the  case  of  Pope  v.  Curll, 
known  to  literary  history,  Lord  Hardwicke  granted 
an  injunction  against  printing  Pope's  Letters  to 
Swift.^     The  injunction  was  submitted  to. 


'  Webb  V.   Rose,   cited  4  Burr,  stimulate     the    resentment    of   his 

2330.     2  Bro.  P.  C.  138.  friends.     Curll  appeared  at  the  bar, 

^  Forrester   v.   Waller,   cited   ut  and,  iinowing  himself  in  no   great 

supra.  danger,    spoke  of  Pope  with   very 

^  2  Atk.  342.     Dr.  Johnson  be-  little    reverence  :     '  He   has,'  said 

lieved  this  case  to  have  been  got  up  Curll,  'a   knack  at  versifying,  but 

by  I'ope  himself,  in  order  to  create  in  prose  1  think  myself  a  match  for 

for  himself  an  opporlunity  to  pub-  him.'   When  the  orders  of  the  house 

lish  his  letters  as  if  in  self-defence,  were  examined,  none   of  them   ap- 

"  One  of  the  passages  of  Pope's  peared    to    have    been    infringed  ; 

life,  wtiich  seems  to  deserve  some  (Jurll    went   away  tiiumphant,  and 

inquiry,  wns  a  publication  of  letters  Pipe  was  left  to  seek  some  other 

between     him     and     many    of   his  remedy. 

friends,  which  falling  into  the  hands         "  (Jurll's   account  was,  that  one 

of  Curll,  a  rapacious  bocdiscller,  of  evening   a   man    in   a   clergyman's 

no  good   fame,  were  by  him  printed  gown,   but   wiih  a  lawyer  s   band, 

and  .sold.     This  volume,  containing  brought  and  offered   for  sale  a  num- 

some   letters  from   noblemen,  Pope  bi  r  of  i)rintcd   volumes,  which   he 

incited  a  pro.soi-ution  against  liim  in  found  to  be   Pope's  Epistolary  Cor- 

thc   house  of  lords   for  a  breach  of  rcspondetice  ;  that  he  asked  no  name 

privilege,   and  attended   himself  to  and   was  told   none,  but  gave  the 


HISTORY    OF    LITERARY    PROPERTY. 


51 


In  1755,  in  the  case  of  Manleyy.  Owen,  a  bill  was 
filed  by  some  printers,  who  had  bought  of  the  lord- 
mayor  the  copy  of  the  Sessions  paper  of  trials,  to 
enjoin  the  defendants  from  printing  it.  The  injunc- 
tion was  granted,  upon  the  ground  that  the  property 
passed  by  the  lord-mayor's  grant  to  the  plaintiffs.' 
This  injunction  was  acquiesced  in. 

In  1758,  the  Duke  of  Queensborough,  as  the  re- 
presentative of  Edward,  Earl  of  Clarendon,-  filed  a 
bill  to  restrain  the  defendants  from  printing,  publish- 
ing, or  disposing  of  Lord  Clarendon's  History  of  the 
reign  of  Charles  the  Second.  The  bill  stated,  that 
Henry,  late  Earl  of  Clarendon,^  was  at  his  death  pos- 
sessed of  a  manuscript  copy  of  this  history,  in  the 
handwriting  of  Edward,   Earl  of  Clarendon,  to  the 


price  demanded,  and  thought  him- 
self authorized  to  use  his  purchase 
to  his  own  advantage. 

"  That  Curll  gave  a  true  account 
of  the  transaction,  it  is  reasonable  to 
believe,  because  no  falsehood  was 
ever  detected  ;  and  when,  some 
years  afterwards,  I  mentioned  it  to 
Lintot,  the  son  of  Bernard,  he  de- 
clared his  opinion  to  be,  that  Pope 
knew  better  than  anybody  else  how 
Curll  obtained  the  copies,  because 
another  parcel  was  at  the  same  time 
sent  to  himself,  for  whieli  no  price 
had  ever  been  demanded,  as  he  made 
known  his  resolution  not  to  pay  a 
porter,  and  consequently  not  to  deal 
with  a  nameless  agent. 

"  Such  care  Ir.ul  been  taken  to 
make  them  public,  tliat  they  were 
sent  at  once  to  two  booksellers  ;  to 
Curll,  who  was  likely  to  seize  them 
as  a  prey  ;  and  to  Lintot,  who  might 
be  expected  to  give  Pope  informa- 
tion of  the  seeming  injury.     Lintot, 


I  believe,  did  nothing  ;  and  Curll  did 
what  was  expected.  That  to  make 
them  public  was  the  only  reason, 
may  be  reasonably  supposed,  be- 
cause the  numbers,  ofiered  to  sale 
by  the  private  messengers,  showed 
that  tbe  hope  of  gain  could  not  have 
been  the  motive  of  tlie  impression. 

"  It  seems  that  Pope,  being  desi- 
rous of  printing  his  letters,  and  not 
knowing  how  to  do,  without  impu- 
tation of  vanity,  what  has  in  this 
country  been  done  very  rarely,  con- 
trived an  appearance  of  compulsion, 
that,  when  lie  could  complain  that 
his  letters  were  surreptiiiously  pub- 
lished, he  might  decently  and  de- 
fensively publish  them  himself."  — 
Ju/inson's  Life  of  Pope. 

'  Manley  v.  Owen,  cited  4  Burr. 
2329,  2101. 

*  Edward,  first  Earl  of  Clarendon, 
the  lord  chancellor. 

'  Henry,  second  Earl  of  Claren- 
don, son  of  tbe  lord  chancellor. 


52  LAW    OF    COPYRIGHT. 

sole  property  whereof  the  plaintiff,  as  administrator 
to  the  late  earl,  became  entitled.  The  defendant, 
Shebbeare,  by  his  answer,  stated,  that  the  defendant, 
Gwynne,  from  whom  he  received  the  manuscript  copy, 
told  him  that  Henry,  Earl  of  Clarendon,  thirty-three 
years  before,  delivered  to  his  (Gwynne's)  father  the 
original  manuscript  of  the  history,  that  he  might 
take  a  copy  of  it,  and  make  use  of  the  copy  as  he 
should  think  fit  ;  and  that  a  copy  was  accordingly 
taken.  The  court  was  of  opinion,  that  it  was  not  to 
be  presumed  that  when  Lord  Clarendon,  the  son, 
gave  the  elder  Gwynne  a  copy  of  his  father's  manu- 
script, he  intended  that  he  should  have  the  right  to 
print  it  ;  that  Mr.  Gwynne  might  make  every  use  of 
it,  except  that.^  The  injunction  was  granted,  and 
was  acquiesced  under  ;  and  Shebbeare  afterwards  re- 
covered against  Gwynne,  before  Lord  Mansfield, 
large  damages,  for  representing  that  he  had  a  right 
to  print.^ 

Thus  stood  the  law  of  England  upon  this  subject 
until  the  year  1761,  when  the  action  of  Tonson  v. 
Collins,  upon  the  copyright  of  the  Spectator,  was 
brought  in  the  court  of  king's  bench.  The  plaintiffs 
were  the  representatives  and  assigns  of  Jacob  Ton- 
son,  who  purchased  the  work  of  Mr.  Addison  and  Sir 
R.  Steele,  in  1712.  Of  course,  this  copy  was  not 
within   the  statute  of  Anne,  the  term   of  protection 


'  Duke  of  Qucensbury  v.  Sheb-        ^  4  Burr.  2330,  2397. 
beare,  2  Eden's  Ch.  R.  329,  cited  4 
Burr.  U.  2330,  2397. 


HISTORY    OF    LITERARY    PROPERTY.  53 

given  by  that  act  having  long  passed  before  the  com- 
mencement of  the  action.  The  case  was  twice  so- 
lemnly argued  in  the  king's  bench,  and  was  then,  by 
direction  of  Lord  Mansfield,  adjourned  into  the  ex- 
chequer chamber,  to  be  argued  before  all  the  twelve 
judges.^  This  reference  was  not  made  from  any 
difference  of  opinion  or  difficulty  among  the  judges 
of  the  king's  bench  ;  but  they  suspected  collusion, 
and  thinking  that  there  might  be  no  writ  of  error 
brought,  they  chose  to  take  the  opinion  of  all  the 
judges.  The  court  were  afterwards  clearly  informed 
that  it  was  a  case  of  collusion  between  the  parties, 
though  it  had  been  argued  bona  jide  by  the  counsel, 
and  the  case  therefore  fell  to  the  ground.^ 

In  this  manner  passed  away  the  first  opportunity 
for  the  establishment,  in  a  court  of  law,  of  a  doctrine 
of  the  highest  interest  and  importance  to  letters  and 
literary  men.  But  few  years,  however,  could  elapse 
before  the  question  must  have  been  again  present- 
ed, in  a  serious  contest  between  parties  litigating 
actual  interests.  The  literature  of  Ensrland  em- 
braced  so  many  standard  works  in  the  latter  part  of 
the  last  century,  out  of  which  the  question  must  ne- 
cessarily arise  whether  all  the  rights  of  the  author  or 
his  assigns  were  lost  at  the  expiration  of  the  period 
of  protection  fixed  by  the  statute  of  Anne,  that  it  is 
remarkable  that  the  decision  was  deferred  to  so  late 
a  period  as  the  year  1769.     It  was  reserved  for  the 

'  Tonson  i'.  Collins,  I  W.  Black.         *  See  4  Burr.  2100,  statement  of 
R.  301,  321,  315.  Lord  Mansfield. 

6* 


54  LAW    OF    COPYRIGHT. 

most  celebrated  work  of  the  poet  Thomson,  to  pre- 
sent the  case  upon  which  the  doctrine  of  perpetual 
property  was  to  be  adjudged  in  the  court  of  king's 
bench,  before  it  was  finally  overthrown  in  another 
cause,  which  went  to  the  house  of  lords  from  the 
court  of  chancery. 

"  The  Seasons,  by  James  Thomson,"  was  first 
published  by  him,  for  his  own  use  and  benefit  as  pro- 
prietor, at  several  times  between  the  beginning  of 
the  year  1727  and  the  end  of  the  year  1729.  In  the 
latter  year  he  sold  the  work  to  Andrew  Millar,  who 
entered  it  at  stationers'  hall,  and  continued  to  pub- 
lish it  down  to  the  time  of  the  poet's  death,  which 
occurred  in  August,  1748,  and  from  thence  until  the 
year  1763,  when  Robert  Taylor  put  forth  an  edition 
of  the  poem,  without  the  license  or  consent  of  Millar. 
The  term  of  years  secured  by  the  statute  of  Anne 
had  expired ;  and  the  action  brought  by  Millar  in  the 
king's  bench,  in  1766,  proceeded  upon  the  claim  of 
a  perpetual  property  at  common  law  in  the  author 
and  his  assigns.' 

The  special  verdict  in  this  case  found  that  before 
the  reign  of  Queen  Anne,  it  was  usual  to  purchase 
from  authors  the  perpetual  copyright  of  their  books, 
and  to  assign  the  same  from  hand  to  hand  for  valua- 
ble considerations,  and  to  make  the  same  the  subject 
of  family  settlements,  &c.  The  verdict  also  found 
the  by-laws  of  the  stationers'  company,  passed  in 
1681  and  in  1694,  which  have  already  been  cited.^ 

'  MUIar  V.  Taylor,  4  Burr,  2303.  *  Ante,  pp.  36,  37. 


HISTORY    OF    LITERARY    PROPERTY.  55 

The  cause  was  twice  argued  before  a  full  bench, 
Lord  Mansfield  presiding,  and  judgment  was  finally 
rendered  for  the  plaintiff  in  1769,  Yates,  J.  dis- 
senting.^ 

The  great  men  concerned  in  this  cause,  the  ability 
with  which  it  was  argued,  and  the  deliberation  at- 
tending the  decision,  must  forever  give  it  a  high 
value  in  the  estimation  of  every  lawyer.  It  was  ar- 
gued and  adjudged  with  consummate  learning  and 
ability  ;  Lord  Mansfield's  judgment  was  worthy  of 
his  great  name,  and  he  was  assisted  by  two  of  his 
brethren  in  a  manner  that  reflects  upon  them  and 
him  the  highest  honor.  A  writ  of  error  was  after- 
wards brought,  but  it  was  never  prosecuted  ;  and 
the  lords  commissioners,  after  Trinity  term,  1770, 
granted  an  injunction. 

In  estimating  this  celebrated  decision,  it  is  neces- 
sary for   the  historical   inquirer   to  notice  by  what 

'  The  first  argument  was  by  Mr.  dissolved  an  injunction  that  had  been 

Dunning  fur  the  plaintifT,  and   Mr.  obtained,  because  the  general  quea- 

Thurlow  for  the  defendant  ;  the  se-  tion  had  never  been  determined,  and 

cond   by   Mr.    lilackstone   for    the  directed  an   action  at  law  to  try  the 

plaintiff,   and  Mr.  Murphy  for   the  right.     In  consequence  of  this,  the 

defendant.     The  judges  concurring  question    was    afterwards    brought 

in   the   judgment  were  Lord  Mans-  forward  in  the  shape  of  a  special 

field,  C.  J.,  WillesJ.  and  Aston  J.  ;  verdict,  as  it  now  appears  in  Millar 

Yates  J.  dissented. — The  case  first  v.  Taylor,  4  Burr.     Lord  Mansfield 

arose  in  the  court  of  chancery,  and  in  this  case  took  notice  of  the   cir- 

was  sent  to  the  king's  bench  for  a  cumstances   under   which  the   case 

decision  of  the  general  question  of  had  been  sent  before  him,  and  said 

properly,  at  the  time  when  the  case  that  "  there  never  had  been  a  doubt 

of  Tonson  v.  Collins  hung   in  that  in   the   court  of  chancery,  until   a 

court  under  an  appearance  of  doubt,  doubt  was  raised   there  from  dccen- 

In  the   court  of  chancery,  in  July,  cy,   upon  a  supposed  doubt  in   this 

1765,  in  the  case  of  Millar  v.  Don-  court  in  the  case  of  Tonson  v.  Col- 

aldson,  reported  2  Eden's  Ch.  R.  hns."     4  Burr.  2400. 
327,   Lord  Chancellor  Northington 


56  LA.W    OF    COPYRIGHT. 

Standard  the  right  of  the  plaintiff,  as  a  right  at  com- 
mon law,  was  tried.  Printing  was  introduced  into 
England  within  the  time  of  legal  memory,  that  is, 
since  the  reign  of  Richard  II.  It  was  therefore  out 
of  the  question  to  found  the  right  of  perpetual  litera- 
ry property  upon  immemorial  usage  or  precedent. 
But  a  right  may  exist  at  the  common  law  of  England 
upon  principles  of  natural  justice,  moral  fitness,  and 
public  convenience  ;  which,  when  applied  to  a  new 
subject,  make  common  law  without  a  precedent  ;  and 
if  the  alleged  right  has  been  received  by  usage,  it  is 
still  stronger.  The  argument  therefore  divided  itself 
into  two  great  branches.  Under  the  first  head,  the 
inquiry  was  directed  to  the  legislative  and  the  judi- 
cial, as  well  as  the  common  opinion  of  the  country, 
to  ascertain  whether  this  right  had  been  generally 
received  and  treated  as  a  right  of  property  ;  and, 
under  the  second  head,  the  justice,  fitness,  and  con- 
venience of  the  doctrine  furnished  the  grounds  on 
which  the  adjudication  was  in  part  rested.^ 


'  M.  Rcnouard  has  put  the  qucs-  that  must  be  given  to  these  ques- 
tion, with  great  pertinency,  "  What  tions,  aficr  a  survey  of  the  historical 
were  the  provisions  of  the  common  part  of  the  argument.  An  author 
law  in  England,  before  the  statute  in  England  either  had  some  right  to 
of  Anne  1  Had  the  author  any  right  enjoy  the  profits  of  his  publicaiion, 
of  copy?  Has  the  statute  of  Anne  before  the  statute,  or  he  had  none, 
given  a  right  which  the  common  If  he  had  any  right  at  all,  it  is  difR- 
law  did  not  confer,  or  has  it  on  the  cult  to  see  what  restrained  it  to  a 
contrary  restrained  a  right  which  right  short  of  a  perpetuity.  I  have 
the  common  law  did  confer  1" —  never  met  with  the  argument  which 
( Traite  d<:s  Droits  D^Auleurs,  Par  denies  the  existence  of  all  right 
August  in- Charles  Rcnouard,  Con-  whaiever,  except  that  which  goes 
seiiler  a  La  Cour  de  Cassation.  Pa-  the  length  of  inferring  an  abandon- 
ris,  1838,  tom.  1,  p.  233.)  It  is  mcnt  or  surrender  to  the  public  by 
difficult  to  escape  from  the  answer  the  act  of  publication. 


HISTORY    OF    LITERARY    TROrERTY.  57 

One  great  struggle  in  this,  and  the  preceding  case 
of  Tonson  v.  Collins  was,  to  show  that  by  the  act  of 
publication,  the  author  abandoned  or  surrendered 
any  right  of  property  which  he  might  have  had  in  his 
ideas,  or  in  the  form  in  which  they  were  expressed. 
But  this  was  answered  conclusively  by  the  court. 
From  the  doctrine,  that  the  author  had  by  the  com- 
mon law  of  England,  as  had  always  been  admitted,  a 
property  before  publication,  the  court  declared  that 
there  could  be  no  just  distinction  founded  on  the 
mere  fact  of  publication.  If  the  property  exists, 
while  the  work  is  still  in  manuscript,  before  publica- 
tion, there  is  nothing  in  the  mere  act  of  publication 
which  shows  an  intention  to  abandon  or  give  away 
that  property.  If  the  author  does  not  mean  to  aban- 
don or  give  it  away,  then  the  question  resolves  itself 
into  this,  whether  it  is  agreeable  to  natural  princi- 
ples, moral  justice  and  fitness,  to  allow  him  the  copy 
after  publication,  as  well  as  before  ?  Of  this  ques- 
tion, said  Lord  Mansfield,  "  the  general  consent  of 
the  kingdom  for  ages  is  on  the  affirmative  side;" 
and  he,  as  well  as  the  judges  who  concurred  with  him, 
deduced  that  consent  from  the  whole  judicial  and 
legislative  opinion  that  had  preceded  the  statute. 

Having  thus  deduced  the  right  of  literary  property, 
the  question  remained  to  be  disposed  of,  whether 
the  statute  of  Anne  had  abridged  it,  so  that  the  owner 
could  claim  only  the  exclusive  right  for  a  term  of 
years.  Upon  this  question,  the  court  held,  that  the 
statute  had  not  taken  away  the  property  of  authors 


58  LA.W    OF    COPYRIGHT. 

at  common  law  ;  but  was  merely  intended  to  give, 
for  a  term  of  years,  a  more  efficient  protection,  where 
the  entry  and  the  other  provisions  of  the  act  should 
have  been  complied  with/ 

But  this  decision  was  not  long  acquiesced  in. 

A  cause  had  been  for  some  time  pending  in  the 
court  of  chancery,  in  which  a  Mr.  Becket  complained 
of  a  publication  by  the  Messrs.  Donaldson  of  a  book 
belonging  to  him.  After  the  decision  in  Millar  v. 
Taylor,  Lord  Chancellor  Apsley  granted  an  injunc- 
tion, as  of  course,  in  favor  of  Mr.  Becket,  pursuant 
to  the  decision  of  the  general  question  in  the  court 
of  king's  bench,  and  an  appeal  from  this  decree  was 
taken  to  the  house  of  lords.^  This  appeal  came  on 
to  be  heard  in  1 774,  and  was  argued  by  Thurlow, 
attorney-general,  and  Sir  John  Dalrymple  against 
the  right  at  common  law,  and  by  Wedderburn, 
solicitor-general,  and  Dunning,  in  favor  of  it.  The 
judges  were  ordered  to  deliver  their  opinions.  Ten 
of  the  judges  were  of  opinion  that  at  common  law  an 


•  Yates,  J.  dissented  upon  this  Manafield,  he  would  probably  have 
question  also.  given  a  reason  of  great  significance 

*  Apsley  is  the  proper  title  of  this  with  him.  Lord  Cannpbell  repre- 
chancellor  to  the  year  1775,  though  sents  him  as  a  weak  person,  accus- 
he  was  afterwards  Lord  Bathurst,  tomed  to  lean  upon  the  chief  justice, 
and  is  called  by  the  latter  title  by  But  when  he  came  to  speak  to  this 
Lord  Campbell,  tiirough  the  whole  question  in  the  house  of  lords,  he 
of  his  chancellorship.  I  have  fol-  seems  to  have  emancipated  himself 
lowed  the  reporters,  but  he  is  usually  from  the  authority  of  Lord  Mans- 
styled  Lord  Bathurst  in  modern  field,  and  declaring  himself  impar- 
timcs.  lie  professed  to  have  made  tial,  went  the  other  way,  (17  Pari, 
this  decree  as  of  course,  because  Hist.  1001.)  See  his  Life,  in  Lord 
the  point  had  been  so  decided  in  the  Campl)ell's  Chancellors,  vol.  v.  pp. 
king's  bench,  (17  Pari.  Hi.st.  1001.)  432-472. 

If  he  had  said  he  had  followed  Lord 


HISTORY    OF    LITERARY    PROPERTY.  59 

author  of  any  book  or  literary  composition  had  the 
sole  right  of  first  printing  and  publishing  the  same 
for  sale,  and  might  bring  an  action  against  any  per- 
son who  printed,  published  and  sold  the  same  with- 
out his  consent  ;  and  one  judge  was  of  the  contrary 
opinion.  Three  judges  were  of  opinion  that  the  law 
took  away  the  right  after  publication,  so  that  any 
person  could,  without  leave  of  the  author,  print  and 
publish  a  book  which  the  author  had  once  publish- 
ed ;   and  eight  were  of  the  contrary  opinion. 

Six  judges  were  of  opinion  that  the  statute  of 
Anne  took  away  the  action  at  common  law,  and  that 
an  author  had  no  remedy  except  upon  the  founda- 
tion of  that  statute ;  and  five  were  of  the  contrary 
opinion. 

Seven  judges  were  of  opinion  that  the  author  of 
any  book  or  literary  composition,  and  his  assigns, 
had  the  sole  right  of  printing  and  publishing  the 
same,  in  perpetuity,  by  the  common  law ;  and  four 
were  of  the  contrary  opinion. 

Six  judges  were  of  opinion  that  this  right  in  per- 
petuity is  impeached,  restrained  and  taken  away  by 
the  statute  of  Anne  ;  and  five  were  of  opinion  that  it 
is  not.^ 

Lord  Mansfield,  being  a  peer,  did  not  deliver  any 
opinion  ;  but  it  was  notorious,  that  he  adhered  to  the 
judgment  which  he  had  delivered  on  all  these  ques- 
tions ;  ~  and  thus,   of  the   twelve  judges,  the  great 

'    17  Pari.  Hist.  971  et  seq.  ;   4         '  Sir  James  Burrow  says  it  was 
Burr.  R.  2108,  et  seq.  notorious  that  Lord  Mansfield  ad- 


60 


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weight  of  authority  and  numbers  was  in  favor  of  the 
perpetuity  at  common  law  ;  and  upon  the  question, 
whether  such  right  was  taken  away  by  the  statute, 
the  judges  were  equally  divided.^ 

In  this  posture  of  the  case,  Lord  Camden  came 
forward  to  move  the  judgment  of  their  lordships,  and 
delivered  an  elaborate  argument  against  the  common 
law  right  of  property,  which  turned  the  scale.  His 
speech  was  able  and  ingenious,  but  sarcastic,  sophis- 
tical, and  not  altogether  fair  towards  the  other  side 
of  the  question.  It  was  chiefly  devoted  to  answering 
the  judgment  of  Lord  Mansfield  in  Millar  v.  Taylor.^ 


hered  to  his  opinion ;  but  it  being 
very  unusual  (from  reasons  of  delica- 
cy) for  a  peer  to  support  his  own 
judgment,  he  did  not  speak.  4  Burr. 
2417.  He  was  afterwards  much 
blamed  in  the  house  of  commons  for 
not  speaking.  This  w;is  on  the  oc- 
casion of  an  application  by  tiie  book- 
sellers for  an  extension  of  the  term 
of  copyright,  they  having,  as  it  was 
shown,  laid  out  great  sums,  on  the 
authority  of  the  decision  in  the 
king's  bench.  It  was  even  said, 
that  had  Lord  Mansfield  defended 
his  judgment,  in  the  house  of  lords, 
the  then  pending  bill  would  never 
have  been  brought  in.  17  Pari.  Hist. 
1090. 

'  The  leading  argument,  adverse 
to  the  right  of  perpetuity,  among 
the  judges,  was  that  delivered  by 
De  Grey,  Lord  Ch.  Justice  of  the 
common  pleas.  He  tlius  disposes 
of  the  question  as  to  the  effect  of 
publication:  "But  it  is  said,  that 
the  sale  of  a  printed  copy  is  a  quali- 
fied or  conditional  sale,  and  that  the 
purchaser  may  make  all  the  uses  he 
pleases  of  his   work,   except  that 


one  of  reprinting  it  ;  but  where  is 
the  evidence  of  this  extraordinary 
bargain?  or  where  the  analogy  of 
law  to  support  the  supposition.  In 
all  other  cases  of  purchase,  payment 
transfers  the  whole  and  absolute 
property  to  the  buyer  ;  there  is  no 
instance  where  a  legal  right  is  other- 
wise transferred  by  sale,  an  exam- 
ple of  such  a  speculative  light  re- 
maining in  the  seller.  It  is  a  new 
and  metaphysical  refinement  upon 
the  law  ;  and  laws,  like  some  man- 
ufactures, may  be  drawn  so  fine  as 
at  last  to  lose  their  strength  with 
their  solidity."  17  Pari.  Hist.  990. 
^  As  an  American,  I  am  bound  to 
hold  the  memory  of  Lord  Camden, 
the  statesman,  in  the  highest  honor. 
But  to  a  lawyer,  the  cause  of  truth, 
in  all  that  concerns  the  science  of 
human  rights,  is  cosmopolitan.  It- 
is  impossible  to  read  this  speech  of 
Lord  Camden's,  with  the  book  of 
history  open  before  us,  without  per- 
ceiving that  there  were  secret  causes 
of  bias  operating  upon  his  judg- 
ment. He  spoke  sincerely,  without 
doubt.     He  was  too  great  and  too 


1 


HISTORY    OF    LITERARY    PROPERTY. 


61 


The  passage  of  declamation  in  which  he  argued  that 
glory  and  not  profit  is  or  should  be  the  reward  of 
men  of  letters,  has  been  often  quoted,  and  is  now  the 
most  familiar  portion  of  the  speech.  He  declared 
that  there  was  no  foundation  for  literary  property  in 
the  common  law,  and  none  in  the  principles  of  sound 
policy,  or  good  sense.  He  denounced  the  perpetuity 
contended  for,  as  odious  and  selfish,  deserving  of 
reprobation,  and  likely  to  become  intolerable.^     He 


good  a  man,  not  to  say  too  great 
a  lawyer,  to  have  purposely  mis- 
led the  judicial  action  of  the  house 
of  lords.  But  it  cannot  be  doubt- 
ed, that  he  was  predisposed  to  en- 
counters witli  Lord  Mansfield  ;  and, 
that  his  opinions  were  thus  influ- 
enced by  a  rivalry  in  which  he  was 
prone  lo  indulge,  is  but  too  ap- 
parent in  the  speech  itself.  It  is, 
without  direct  allusion,  a  running 
answer  lo  Lord  Mansfield's  judg- 
ment in  Millar  v.  Taylor.  He  han- 
dles the  same  topics,  follows  in  the 
same  track,  and  turns  or  seeks  to 
turn  the  positions  of  the  illustrious 
chief  of  the  king's  bench  and  of  his 
associates  who  agreed  with  him. 
The  truth  is,  these  great  men  for  a 
long  time  time  contended  for  the  su- 
premacy as  law  lords  in  the  upper 
house.  It  appears  that  when  Lord 
Camden  first  entered  that  assembly, 
"  Lord  Mansfield  instinctively  dread- 
ed a  contest  for  the  supremacy  which 
he  had  enjoyed  there  since  the  death 
of  Lord  liardwieke  ;  "  ( Lord  Camp- 
bell's Lives  of  the  Chancellors,  V. 
252,)  and  although  when  he  and 
Lord  Camden  sat  together  at  the 
hearing  of  appeals,  they  conducted 
with  great  decorum,  and  rarely  dif- 
fered in  opinion,  when  settling  to- 
gether the  law  in  the  last  resort, 
there  were  other  occasions  when 
6 


they  attacked  each  other  in  debate 
so  sharply  as  almost  to  render  it  ne- 
cessary for  the  house  to  interfere. 
In  one  scene,  which  occurred  about 
four  years  before  the  discussion  of 
the  question  of  literary  property, 
they  liad  a  personal  controversy  of 
a  very  disagreeable  character,  in 
which  Lord  Camden  seems  to  have 
triumphed  by  the  exhibition  of  more 
nerve  than  belonged  to  "  the  silver- 
tongued  Murray."  (Campbell,  ut 
sup.  p.  295.)  Alas,  that  history 
should  be  obliged  to  chronicle  the 
foibles  of  the  great,  who  demand  and 
receive  the  reverence  of  posterity. 

'  "  If,  then,  there  be  no  founda- 
tion of  right  for  this  perpetuity  by 
the  positive  laws  of  the  laud,  it  will 
I  believe  find  as  little  claim  to  en- 
courarrement  upon  public  principles 
of  sound  policy,  or  ffood  sense.  If 
there  be  anythinir  in  the  world  com- 
mon to  all  mankind,  science  and 
learning  are  in  their  nature  jnib/ici 
jnrix,  and  they  ought  to  be  as  free 
and  jreneral  as  air  or  water.  Tiiey 
forget  their  Creator,  as  well  as  their 
fellow  creatures  who  wish  to  mo- 
nopolize his  noblest  gilts  and  great- 
est benefits.  Why  did  we  enter 
into  society  at  all,  but  to  enlighten 
one  another's  minds,  and  improve 
our  faculties,  for  the  common  wel- 
fare of  the  species  ?     Those  great 


62 


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was  answered,  it  is  said,  very  ingeniously,  by  Lord 
Littleton,    a   lay   peer,  who   spoke  in  favor  of  au- 


mcn,  those  favored  mortals,  those 
sublime  spirits,  who  share  that  ray 
of  divinity  which  we  call  genius, 
are  intrusted  by  Providence  with  the 
delegated  power  of  imparting  to 
their  fellow-creatures  that  instruc- 
tion which  heaven  meant  for  univer- 
sal benefit ;  they  must  not  be  nig- 
gards to  the  world,  or  hoard  up  for 
themselves  the  common  stocic.  We 
know  what  was  tiie  punishment  of 
him  who  hid  his  talent,  and  Pro- 
vidence has  taken  care  that  there 
shall  not  be  wanting  the  noblest 
motives  and  incentives  for  men  of 
genius  to  comnmnicatc  to  the  world 
those  truths  and  discoveries  which 
are  nothing  if  uncommunicated. 
Knowledge  has  no  value  or  use  for 
the  solitary  owner  :  to  be  enjoyed  it 
must  be  communicated.  '  Scire  tu- 
um  nihil  est,  nisi  te  scire  hoc  sciat 
alter.'  Glory  is  the  reward  of  sci- 
ence, and  those  who  deserve  it, 
scorn  all  meaner  views  :  I  speak  not 
of  the  scribblers  for  bread,  who  tease 
the  press  with  their  wretched  pro- 
ductions ;  fourteen  years  is  too  long 
a  privilege  for  their  perishable  trash. 
It  was  not  for  gain,  tliat  Bacon,  New- 
ton, Milton,  Locke,  instructed  and 
delighted  the  world;  it  would  be 
unworthy  such  men  to  traffic  with  a 
dirty  bookseller  for  so  much  a  sheet 
of  a  letter  press.  When  the  book- 
seller ofiered  Milton  five  pound  for 
his  Paradise  Lost,  he  did  not  reject 
it,  and  commit  liis  poem  to  the 
flames,  nor  did  he  accept  the  miser- 
able pittance  as  the  reward  of  his 
[abor ;  he  knew  that  the  real  price 
of  his  work  was  immortality,  and 
that  posterity  would  pay  it.  iSome 
authors  arc  as  careless  about  profit 
as  others  are  rapacious  of  it ;  and 
what  a  situation  would  the  public 
be  in  with  regard  to  literature,  if 


there  were  no  means  of  compelling 
a  second  impression  of  a  useful  work 
to  be  put  forth,  or  wait  till  a  wife  or 
children  are  to  be  provided  for  by 
the  sale  of  an  edition  1  All  our 
learning  will  be  locked  up  in  the 
hands  of  the  Tonsons  and  the  Lin- 
tons  of  the  age,  who  will  set  what 
price  upon  it  their  avarice  chooses 
to  demand,  till  the  public  become  as 
much  their  slaves,  as  their  own 
hackney  compilers  are."  17  ParL 
Hist.  999,  1000. 

As  Lord  Camden  cites  the  exam- 
ple of  Milton,  to  show  that  he  placed 
no  value  upon  the  rig'ht  of  property 
in  his  great  poem,  it  may  be  well  to 
repeat  the  authentic  facts  concerning 
the  sale  of  that  copyright.  Milton 
sold  his  copy  to  Samuel  Simmons 
in  1067,  for  an  immediate  payment 
of  five  pounds.  But  the  agreement 
entitled  him  to  a  conditional  pay- 
ment of  five  pounds  more  when  thir- 
teen hundred  copies  should  be  sold 
of  the  first  edition  ;  of  the  like  sum 
after  the  same  number  of  the  second 
edition  ;  and  of  another  five  pounds 
after  the  same  sale  of  the  third  edi- 
tion. The  number  of  each  edition 
was  not  to  exceed  fifteen  hundred 
copies.  In  two  years,  the  sale  gave 
the  poet  a  right  to  his  second  pay- 
ment, for  which  he  signed  a  receipt 
on  the  26th  of  April,  1669.  The 
second  edition  was  not  printed  till 
1074,  and  Milton  did  not  live  to  re- 
ceive the  payment  stipulated  for  this 
impression.  The  third  edition  was 
published  in  1078;  and  his  widow, 
to  whom  the  copy  was  then  to  de- 
volve, agreed  with  Simmons,  the 
printer,  to  receive  eight  pounds  for 
her  right,  according  to  her  receipt, 
dated  December  21,  1680  ;  and  she 
gave  him  a  general  release,  dated 
April  29,  1G81.     Simmons  sold  the 


HISTORY    OF    LITERARY    PROPERTY. 


G3 


thors.'  Their  lordships  divided,  twenty-two  for  re- 
versing the  decree,  and  eleven  for  confirming  it. 
Thus  the  right  of  authors  in  their  publications,  as  a 
right  at  the  common  law  of  England,  affirmed  by  a 
majority  of  the  judges  to  have  previously  existed, 
was  lost  forever. 

Lord  Camden's  argument,  on  this  occasion,  went 
the  length  of  maintaining  that  publication  is  an  aban- 
donment to  the  public  of  all  the  author's  previous 
right  over  his  own  productions.  Admitting  that 
every  man  has  a  right  to  his  thoughts  while  they 
continue  his,  he  contends  that  they  become  publici 
juris,  as  soon  as  he  has  published  them  ;  that  the 
common  law  had  never  recognized  ideas  as  sub- 
jects of  property,  and  had  never  declared  whether 


riffht  to  Brabason  Aylmer,  a  book- 
seller, for  twenty-five  pounds,  and 
Aylmer  sold  it  to  Jacob  Tonson, 
one  moiety  in  August,  1GH3,  and 
the  other  moiety  in  March,  1G90, 
at  a  price  considerably  advanced. 
(Todd's  Life  of  Milton,  193-195, 
Lond.  182G.)  It  thus  appears  that 
the  poet  was  very  careful  to  assert 
his  full  rifjht  of  property,  as  he  and 
others  understood  it  at  the  time,  and 
to  make  it  available  to  his  family. 
The  amount  which  he  chose  to  re- 
ceive, compared  with  the  real  value 
of  the  poem,  or  measured  by  a  mod- 
ern standard,  seems  very  triflintj. 
But  as  such  rights  were  estimated 
then,  and  considering  that  the  poem 
gained  slowly  upon  the  attention  of 
his  own  age,  it  was  not  a  grossly 
inadequate  price.  When  it  had  been 
published  fourteen  years  and  up- 
wards, the  copyright  helwren  one 
bookseller  and  another^  brought  only 


twenty-five  pounds.  Yet  its  value 
could  not  have  been  affected  by  any 
apprehension,  at  the  time  of  this 
sale,  that  it  was  not  protected  by  the 
common  law.  Such  a  notion  had 
not  then  arisen  ;  and  long  after,  viz. 
in  1739,  Lord  Hardwicke  protected 
bj'  injunction  the  title  of  Tonson, 
derived  under  the  assignment  made 
by  the  poet  in  16fi7.  (Ante,  p.  47,) 
Doubtless  Milton  did  not  write  his 
great  poem  f<ir  money  ;  but  we  have 
seen  that  he  supposed  the  right  of 
exclusive  property  in  authors  was 
acknowledged  by  the  law  of  his 
country,  and  he  took  pains  practi- 
cally to  assert  the  right  in  his  own 
case.  It  seems  to  me  by  no  me:ins 
a  wild  conjecture,  that  he  did  this 
for  the  sake  of  example,  as  well  as 
in  order  to  preserve  his  reputation, 
by  keeping  the  control  of  the  text 
ot'  his  poem. 

'  Thomas,  second  Lord  Littleton. 


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they  were  descendable,  transferable  or  assignable. 
"When  published,"  he  asks,  "  can  the  purchaser 
lend  his  book  to  his  friend  ?  Can  he  let  it  out  for 
hire  as  the  circulating  libraries  do  ?  Can  he  enter  it 
as  common  stock  in  a  literary  club,  as  is  done  in  the 
country  ?  May  he  transcribe  it  for  charity  ?  Then 
what  part  of  the  work  is  exempt  from  this  desultory 
claim  ?  Does  it  lie  in  the  sentiments,  the  language 
and  style,  or  the  paper  ?  If  in  the  sentiments  or 
language,  no  one  can  translate  or  abridge  them. 
Locke's  Essay  might,  perhaps,  be  put  into  other  ex- 
pressions, or  newly  methodized,  and  all  the  original 
system  and  ideas  be  retained.  These  questions  show 
how  the  argument  counteracts  itself,  how  the  subject 
of  it  shifts,  and  becomes  public  in  one  sense,  and  pri- 
vate in  another  ;  and  they  are  all  new  to  the  com- 
mon law,  which  leaves  us  perfectly  in  the  dark  about 
their  solution."^ 


'  17  Pari  Hist.  998.  "  And  how 
are  the  judges,"  he  continues, "  with- 
out a  rule  or  guide,  to  determine 
them  when  they  arise,  whose  books 
and  studies  afford  no  more  light  up- 
on the  subject  than  the  common  un- 
derstandings of  the  parties  tiiem- 
sclves?  What  diversity  of  judg- 
ments !  what  confusion  in  opinion 
must  they  fall  into  !  without  a  truce 
or  line  of  law  to  direct  tlieir  deter- 
mination !  What  a  code  of  law  yet 
remains  for  their  ingenuity  to  fur- 
nish, and  could  they  all  agree  in  it, 
it  would  not  be  law  at  last,  but  leg- 
islation. 

"  But  it  is  said  that  it  would  be 
contrary  to  the  ideas  of  private  jus- 
tice, moral  fitness,  and  public  con- 


venience, not  to  adopt  this  new  sys- 
tem. But  who  has  a  right  to  decide 
these  new  cases,  if  there  is  no  other 
rule  to  measure  by  but  moral  fitness 
and  equitable  right?  JNot  the  judges 
of  the  common  law,  I  am  sure. 
Their  business  is  to  tell  the  snitor 
how  the  law  stands,  not  how  it  ought 
to  be  ;  otherwise  each  judge  would 
have  a  distinct  tribunal  in  his  own 
breast,  the  decisions  of  which  would 
be  iiregular  and  uncertain,  and  va- 
rious, as  the  minds  and  tempers  of 
mankind.  As  it  is,  we  find  they  do 
not  always  agree  :  but  what  would 
it  be,  where  the  rule  of  right  would 
always  be  the  private  opinion  of  the 
judge,  as  to  tlic  moral  fitness  and 
convenience  of  the  claim  1    Caprice, 


HISTORY    OF    LITERARY    PROPERTY.  65 

He  denied  also  that  there  is  any  implied  contract 
between  the  person  who  sells  and  the  person  who 
buys  a  printed  copy,  which  he  called  a  "  Himsy  sup- 
position, as  unmeaning  in  itself,  as  it  is  void  of  a 
legal  foundation."^ 

It  can  scarcely  be  necessary,  at  the  present  day,  to 
make  any  answer  to  some  of  these  arguments.  It  is 
sufficient  to  observe  that  the  whole  bench  of  judges, 
with  one  exception,  held  that  at  common  law  an  ex- 
clusive right  to  publish  the  contents  of  a  manuscript 
resided  in  the  author,  and  that  nine  of  them,  (includ- 
ing Lord  Mansfield,)  did  not  consider  that  publica- 
cation  made  the  literary  composition  publici  juris. 
No  one  supposed  then,  and  it  has  not  since  been 
contended,  that  the  common  law  recognized  ideas  as 
the  subject  of  property,  in  the  sense  which  Lord 
Camden  attributes  to  his  opponents.  No  English 
jurist,  then  or  since,  ever  supposed   that  the  pur- 


sclf-interest,  vanity,  would  by  turns  '  Ibid.  p.  1000.     It  had  for  ages 

hold  tlie  scale  of  justice,  and  the  law  been  admitted  that  the  proprietor  of 

of  property   be  indeed  most  vague  a  manuscript  had  the  sole  right  to 

and  arbitrary.    That  excellent  judge,  publish  it,  and  the  judges  had,  Tdmost 

Lord  Chief  Justice  Lee,  used  always  unanimously,  just  declared  this  to  be 

to  ask  the  counsel,  after  his  argu-  common  law.     Repeated  injunctions 

ment   was   over,     '  Have   you   any  had  been  granted,    to   restrain  the 

case!'     I  hope  judges  will  always  publication  of  manuscripts  without 

copy  the  example,  and   never  pre-  authority.     Did  they  proceed  upon 

tend  to  decide  upon  a  claim  of  pro-  anything  but  an  implied  contract  on 

perty,  without  attending  to  the  old  the  part  of  the  person  into  whose 

black    letter   of    our   law,    without  pot^session    the      manuscripts     had 

founding  ihcir  judgment  upon  some  come,  not  to  do  more  tlian  the  pur- 

solid  writien  authority,  preserved  in  pose  warranted  for  which  they  had 

their  books,  or  injudicial  records,  come  into  his  hands  !     And  was  this 

In  this  case  I  know  there  is   none  contract  a  "  llimsy  supposition  !  " 
such  to  be  produced."   17  Pari,  liist. 
998, 999. 

6* 


66  LAW    OF    COPYRIGHT. 

chaser  of  a  printed  copy  of  a  book  could  not  lend  it, 
or  let  it  out  for  hire  to  a  reader,  or  even  transcribe 
it  for  charity,  without  violating  the  alleged  exclusive 
right  of  the  author.  The  exclusive  privilege  of  the 
author  consists  in  the  sole  right  to  print  a  written 
composition  and  to  take  the  profits  of  the  sale  of 
printed  copies.  In  this  sense,  the  law  of  Eng- 
land undeniably  recognized  a  species  of  property 
in  ideas,  for  it  absolutely  prohibited  the  printing  of  a 
written  composition,  still  in  manuscript,  without  the 
consent  of  the  author  or  proprietor.  Yet  in  the  case 
of  manuscripts,  the  same  argument  could  be  urged, 
from  possession  of  the  copy,  as  from  possession  of 
the  copy  of  a  printed  book.  If  the  common  law  re- 
cognized this  incorporeal  right,  in  the  one  case,  it 
needed  no  other  element  of  property  to  recognize  it 
in  the  other.  The  only  remaining  question,  after 
publication,  is,  whether  the  sale  of  a  printed  copy 
carries  with  it  a  license  of  publication,  when  the  loan 
of  a  manuscript,  or  its  delivery  for  a  specific  purpose, 
carries  no  such  license,  according  to  the  common 
law. 

The  decision  in  the  house  of  lords  was  immedi- 
ately followed  by  an  application  to  parliament,  on 
behalf  of  the  booksellers  of  London,  representing 
that  large  sums  had  been  invested  in  the  purchase  of 
ancient  copyrights,  not  protected  by  the  statute  of 
Queen  Anne,  upon  the  generally  prevalent  opinion 
that  that  statute  did  not  interfere  with  the  common 
law  right  ;  that  by  the  late  decision  of  the  house  of 


HISTORY    OF    LITERARY    PROPERTY.  67 

lords,  such  common  law  right  of  authors  and  their 
assigns  had  been  declared  to  have  no  existence, 
whereby  the  petitioners  would  be  very  great  suffer- 
ers, through  their  former  involuntary  misapprehen- 
sion of  the  law ;  and  praying  for  relief  in  the  prem- 
ises. Evidence  was  thereupon  taken  before  a  com- 
mittee of  the  house  of  commons,  and  a  bill  was 
brought  in,  to  vest  the  copies  of  old  books,  not  pro- 
tected by  the  act  of  Anne,  in  the  purchasers  of  such 
copies  from  authors  or  their  assigns,  for  a  limited 
time.^  Counsel  were  heard  at  the  bar  for  and 
against  the  bill,  and  a  long  and  angry  debate  ensued 
upon  the  question  of  its  passage.  After  a  struggle 
at  every  stage  of  its  progress,  the  bill  finally  passed 
the  commons,  on  the  26th  of  May,  1774,  by  a  vote 
of  40  to  22,-  but  was  afterwards  thrown  out  in  the 
lords,  chieiiy  through  the  exertions  of  Lord  Camden. 
In  this  posture  of  things,  the  universities  applied 
to  parliament,  and  succeeded  in  obtaining  in  1775  an 
act,  which  enabled  the  two  universities  in  England, 

'  The    evidence  showed   that   a  consonant  to  his  elevated  character, 

great  amount  of  money  had   been  Tlie  interests  arrayed  against  it  were 

invested  in  such  okl  copies.  the  country  and  the   Scotch   hook- 

*  17  Pari.  Hist.  1077 — 1110.  sellers;  liut  letters  were  produced 
The  whole  discussion,  both  on  the  by  several  members  from  Mr.  Hume, 
part  of  the  counsel  and  the  mcni-  Dr.  Kurd,  Dr.  Robertson,  Dr.  Beat- 
bers  opposed  to  the  bill,  was  marked  tie,  and  other  writers  of  established 
by  a  spirit  of  acrimony  quite  un-  reputation,  containing  the  warmest 
worthy  of  the  occasion.  The  ap-  wisltcs  for  the  petitioners,  lamenting 
peals  to  prejudice  against  the  book-  the  late  decision  in  the  house  of- 
sellers,  as  a  class  of  monopolists,  lords,  as  fatal  to  literature,  and  ex- 
were  of  the  coarsest  character.  The  pressing  the  hope  that  the  booksel- 
principal  persons  who  supported  the  lers  might  get  speedy  relief.  Mr. 
bill  were  Mr.  Fielde,  Col.  Onslow,  Charles  James  Fox  was  among  the 
and  Mr.  Burke,  the  latter  taking  opponents  of  the  bill.  Ibid. 
that  enlarged  and  liberal  view  of  it 


68  LAW    OF    COPYRIGHT. 

the  four  universities  in  Scotland,  and  the  several  col- 
leges of  Eton,  Westminster  and  Winchester,  to  hold 
in  perpetuity  their  copyright  in  books  given  or  be- 
queathed to  them  for  the  advancement  of  useful 
learning  and  other  purposes  of  education.^ 

A  quarter  of  a  century  later,  the  statutory  term 
of  copyright  for  authors  in  general  was  extended 
to  twenty-eight  years,  in  case  the  author  should 
be  living  at  the  expiration  of  the  first  fourteen 
years.- 

Subsequently,  a  further  change  was  introduced,  by 
which,  instead  of  copyright  for  fourteen  years  and 
contingently  for  fourteen  more,  authors  were  to  have 
a  term  of  twenty-eight  years,  and  also  for  the  resi- 
due of  their  lives  if  living  at  the  expiration  of  that 
term.^ 

The  next  important  step  was  the  passage  of  an 
act,  3  Will.  IV.  c.  15,  giving  to  the  authors  of  dra- 
matic compositions  the  sole  right  of  representing 
their  plays  or  causing  them  to  be  represented  in  the 
British  dominions.'' 

This  was  followed  by  the  international  copyright 
acf,  1  and  2  Vict.  c.  59,  passed  31st  July,  1838, 
giving  a  copyright  in  England  to  foreign  authors 
w^hose  governments  shall  have  engaged  to  give  the 
same  privilege  to  British  authors.^ 


*  15  Geo.  3,  c.  53.     See  Appen-  '  54  Geo.  3,  c.    15G.  Appendix, 

dix,  p.  18.  p.  38. 

*4l   Geo.   3,  c.    107.     See  Ap-  *  See  Appendix,  p.  51. 

pendix,  p.  29.  ^  Ibid.  p.  57. 


HISTORY    OF    LITERARY    PROPERTY. 


69 


Finally,  by  the  5  and  6  Vict.  c.  45,  passed  1st 
July,  1812,  the  former  laws  relating  to  literary  copy- 
right were  revised,  the  term  extended  to  the  natural 
life  of  the  author  and  for  seven  years  after  his  death, 
or  to  forty-two  years  from  the  first  publication  ;  and 
many  other  important  changes  were  introduced. 

Upon  a  review  of  the  history  of  the  rights  of  au- 
thors in  England,  it  must  be  admitted  that  they  have 
long  had  to  struggle  against  a  great  weight  of  preju- 
dice and  illiberality  in  the  legislature.  Every  im- 
portant concession  that  has  been  gained  for  them 
has  been  won  as  a  trophy  from  a  well  fought  field.' 


'  To  Mr.  Serjeant  Talfoiird  be- 
longs the  chief  honor  of  the  last 
and  greatest  of  these  achievements. 
It  was  mainly  throuo^h  his  exertions 
that  the  act  5  &  0  Vict.  Avas  passed. 
But  it  required  repeated  efforts  to 
accomplish  his  puri)ose.  In  1837, 
he  addressed  himself  to  the  task  in 
the  followino:  manly  and  generous 
strain  of  eloquence  :  "  Aliiiough  I 
see  no  reason  why  authors  should 
not  be  restored  to  that  inheritance 
which,  under  the  name  of  protec- 
tion and  encouraffcmeiit,  has  been 
taken  from  them,  I  feel  tiiat  the  sub- 
ject has  so  lonjj  been  treated  as  mat- 
ter of  compromise  between  those 
who  deny  that  the  creations  of  the 
inventive  faculty,  or  the  achieve- 
ments of  the  reason,  are  the  sub- 
jects of  property  at  all,  and  those 
who  think  the  property  should  last 
as  lonn^  as  the  works  which  contain 
truth  and  beauty  live,  that  I  propose 
still  to  treat  it  on  the  principle  of 
compromise,  and  to  rest  satisfied 
with  a  fairer  adjustment  of  the 
difference  than  the  last  act  of  par- 
liament affords.     I  shall  propose  — 


subject  to  modification  when  the  de- 
tails of  the  measure  shall  be  dis- 
ci, ssed  —  that  the  term  of  property 
in  all  works  of  learning,  genius,  and 
art,  to  be  produced  hereafter,  or  in 
which  the  statutable  copyright  now 
subsists,  shall  be  extended  to  sixty 
years,  to  be  computed  from  the  death 
of  the  author ;  which  will  at  least 
enable  him,  while  providing  for  the 
instruction  and  the  delight  of  dis- 
tant ages,  to  contemplate  that  he 
shall  leave  in  his  works  themselves 
some  legacy  to  those  for  whom  a 
nearer,  if  not  a  higher  duty,  re- 
quires hiin  to  proviile,  and  which 
shall  make  "death  less  terrible." 
When  the  opponents  of  literary 
property  speak  of  glory  as  the  re- 
ward of  genius,  they  make  an  un- 
generous use  of  the  very  nobleness 
of  its  impulses,  and  show  how  little 
they  have  ])rofitcd  by  its  high  ex- 
ample. When  .Milton,  in  poverty 
and  in  blindness,  fed  the  flame  of  his 
divine  enthusiasm  by  the  assurance 
of  a  duration  copqvial  with  his  lan- 
guage, I  believe  with  Lord  Camden 
that  no  thought  crossed  him  of  the 


70 


LA.W    OF    COPYRIGHT. 


That  a  period  of  nearly  a  century  and  a  half  should 
have  passed  away,  after  the  propriety  of  legislative 


wealth  which  might  be  amassed  by 
the  sale  of  his  poem  ;   but  surely 
some  shadow  would  have  been  cast 
upon  "the  clear  dream  and  solemn 
vision"   of  his  future   fjlorics,  had 
he  foreseen  that,  while  booksellers 
were  striving  to   rival  each  other  in 
the  magnificence  of  their  editions, 
or    their    adaptation    to    the    con- 
venience of  various  classes  of  his 
admirers,    his    only  surviving    de- 
scendant—  a    woman  —  should   be 
rescued   from  abject  want  only  by 
the  charity  of  Garrlck,  who,  at  the 
solicitation  of    Dr.    Johnson,   gave 
her  a  benefit  at  the  theatre  which 
had   appropriated  to  itself  all  that 
could    be    represented    of    Comus. 
The  liberality  of  genius  is  surely  ill 
urged  as  an  excuse  for  our  imgrate- 
ful  denial  of  its  rights.     The  late 
Mr.  Colgridge  gave  an  example  not 
merely  of  its  liberality,  but  of  its 
profuseness ;    while   he  sought  not 
even  to  appropriate  to  his  fame  the 
vast  intellectual  treasures  which  he 
had  derived  from  boundless  research, 
and  colored  by  a  glorious  imagina- 
tion ;  while  he  scattered  abroad  the 
seeds  ,of  .beauty  and   of  wi^lom  to 
take  root  in   congenial  minds,  and 
was  content  to  witness  their  fruits 
in   the   productions   of    those   who 
heard  him.     But  oufjlit  we,  there- 
fore, the  less  to  deplore,  now  when 
the  music  of  his  divine   philosophy 
is  forever  hushed,  that   ihc  earlier 
portion  of  those  works  on  which  he 
stamped  his  own  impress — al^whicb 
he  desired  of  the  world  that  it  should 
recognize  as  nj^  —  is  published   for 
the  gain  of  others  than  his  children 
—  that  his  death  is  illustrated  by  the 
forfeiture  of  their  birthright  ?    What 
justice  is  there  in  this?     Do  we  re- 
ward  our  heroes   thus?       Did   we 
tell  our  Marlboroughs,  our  Nelsons, 


our  Wellingtons,  that  glory  was 
iheir  reward,  that  they  fought  for 
posterity,  and  that  posterity  would 
pay  them'!  We  leave  them  to  no 
such  cold  and  uncertain  requital ; 
we  do  not  even  leave  them  merely 
to  enjoy  the  spoils  of  their  victories, 
which  we  deny  to  the  author ;  we 
concentrate  a  nation's  honest  feeling 
of  gratitude  and  pride  into  the  form 
of  an  endowment,  and  teach  other 
ages  what  we  thought,  and  what 
they  ought  to  think,  of  their  deeds, 
by  the  substantial  memorials  of  our 
praise.  Were  our  Shakspeare  and 
Milton  less  the  ornaments  of  their 
country,  less  the  benefactors  of  man- 
kind 1  Would  the  example  be  less 
inspiring  if  we  permitted  them  to 
enjoy  the  spoils  of  their  peaceful 
victories  —  if  we  allowed  to  their 
descendants,  not  the  tax  assessed  by 
present  gratitude,  and  charged  on 
the  future,  but  the  mere  amount 
which  tliat  future  would  be  delighted 
to  pay  —  extending  as  the  circle  of 
their  glory  expands,  and  rendered 
only  by  those  who  individually  reap 
the  benefits,  and  are  contented  at  once 
to  enjoy  and  to  reward  its  author? 

"  I3ut  I  do  not  press  these  consid- 
erations to  the  full  extent;  the  past 
is  beyond  our  power,  and  I  only  ask 
for  the  present  a  brief  reversion  in 
the  future.  '  Riches  fineless  '  cre- 
ated by  the  mighty  dead  are  already 
ours.  It  is  in  truth  the  greatness 
of  the  blessings  which  the  world 
inherits  from  genius  that  dazzles  the 
mind  on  this  question ;  and  the 
habit  of  repaying  its  bounty  by 
words,  that  confuses  us  and  indis- 
poses us  to  justice.  It  is  because 
the  spoils  of  time  are  freely  and  ir- 
revocably ours  —  because  the  forms 
of  antique  beauty  wear  for  us  the 
bloom  of  an  imperishable  youth  — 


HISTORY    OF    LITEIIARY    PROPERTY. 


71 


protection  had  been  admitted,  before  the  enactment 
in  England  of  the  first  law  that  does  nearly  adequate 


because  the  elder  literature  of  our 
own  country  is  a  free  mine  of  wealth 
to  the  bookseller  and  of  delight  to 
ourselves,  that  we  are  unable  to  un- 
derstand the  claim  of  our  contem- 
poraries to  a  beneficial  interest  in 
their  works.  Because  genius  by  a 
genial  nccessiiy  communicates  so 
much,  we  cannot  conceive  it  as  re- 
taining anything  for  its  possessor. 
There  is  a  sense,  indeed,  in  which 
the  poets  '  on  earth  have  made  us 
heirs  of  truth  and  pure  delight  in 
heavenly  lays;'  and  it  is  because 
of  the  greatness  of  this  very  boon 
—  because  their  thouglits  become 
our  tlioughts,  and  their  phrases  un- 
consciously enrich  our  daily  lan- 
guage —  because  their  works,  har- 
monious by  the  law  of  their  own 
nature,  suiigest  to  us  the  rules  of 
composition  by  which  their  imitators 
should  be  guided  —  because  to  them 
we  can  resort,  and  '  in  our  golden 
urns  draw  light,'  that  we  caimot 
fancy  them  apart  from  ourselves, 
or  admit  that  they  have  any  property 
except* in  our  praise.  *  And  our 
gratitude  is  sh'own  not  only  in  leav- 
ing their  descendants  without  por- 
tion in  the  pecuniary  benefits  de- 
rived from  tiicir  works,  but  in  jier- 
mitting  tlieir  fame  to  be  frittered 
away  in  abridgments,  and  polluted 
by  base  intermixtures,  and  denying 
to  their  children  even  the  cold  privi- 
lege of  watching  over  and  protect- 
ing it ! 

"  There  is  something,  sir,  pecu- 
liarly unjust  in  boundin'f  the  term  of 
an  author's  property  by  his  natural 
life,  if  he  should  survive  so  shoit  a 
period  as  twenty-eight  years.  It 
denies  to  age  and  experience  the 
probable  reward  it  permits  to  youth 
—  to  youth,  sufiiciently  full  of  hope 
and  joy,  to  slight  its  promises.     It 


gives  a  bounty  to  haste,  and  informs 
tiie  laborious  student,  who  would 
wear  away  his  strength  to  complete 
some  work  wl^ich  '  the  world  will 
not  willingly  let  die,'  that  the  more 
of  his  life  he  devotes  to  its  per- 
fection, the  more  limited  sh;ill  be  his 
interest  in  its  fruits.  It  sto|)S  the 
progress  of  remuneration  at  the  mo- 
ment it  is  most  needed,  and  when 
the  benignity  of  nature  would  ex- 
tract from  her  last  calamity  a  means 
of  support  and  comfort  to  survivors. 
At  the  season  when  the  author's 
name  is  invested  with  the  solemn 
interest  of  mortality  —  when  his  ec- 
centricities or  frailties  excite  a  smile 
or  a  sneer  no  longer  —  when  the  last 
seal  is  set  upon  his  earthly  course, 
and  his  works  assume  their  place 
among  the  classics  of  his  country, 
your  law  declares  that  his  works 
shall  become  your  property,  and  you 
requite  him  by  seizing  the  patri- 
mimy  of  his  children.  We  blame 
the  errors  and  excesses  of  genius, 
and  we  leave  them  —  justly  leave 
them  —  for  the  most  part,  to  the  con- 
sequences of  their  stranizely-blended 
nature.  But  if  genius,  in  assertion 
of  its  diviner  alliances,  produces 
large  returns  when  the  earthly 
course  of  its  frail  possessor  is  past, 
why  is  the  public  to  insult  his  de- 
scendants with  their  alms  and  their 
pity  1  What  right  have  we  to, 
moralize  over  the  excesses  of  a 
Bums,  and  insult  his  memory  by 
charitable  honors,  while  we  are 
taking  the  benefit  of  his  premature 
death,  in  the  expiration  of  his  copy- 
right and  the  vaunted  cheapness  of 
his  works?  Or,  to  advert  to  a  case 
in  which  the  highest  intellectual 
powers  were  associated  with  the 
noblest  moral  excellence,  what  right 
have  we  to  take  credit  to  ourselves 


72 


LAW    OF    COPYRIGHT. 


justice  to  authors,  is  indeed  surprising.     Addison  is 
said  to  have  been  concerned  in  procuring  the  act  of 


for  a  piillry  and  ineffectual  subscrip- 
tion ti)  rescue  Abbolsford  for  the 
family  of  its  great  author  (Abbots- 
ford,  his  romance  in  stone  and  mor- 
tar, but  not  more  individually  hix 
than  those  hundred  fabrics,  not 
made  with  liands,  which  he  has 
raised,  and  peopled  for  the  delight 
of  mankind,)  while  we  insist  on  ap- 
propriating now  the  profits  of  his 
earlier  poems,  and  anlicipatc  the 
time  when,  in  a  few  years,  his  noveh 
will  be  ours  without  rent-charge  to 
enjoy  —  and  any  one's  to  copy,  to 
emasculate,  and  to  garble  1  This  is 
the  case  of  one  whom  kings  and 
people  delighted  to  honor.  But  look 
on  another  j)icture  —  that  of  a  man 
of  genius  and  integrity,  who  has  re- 
ceived all  the  insult  and  injury  from 
his  contemporaries,  and  obtains 
nothing  from  posterity  hut  a  name. 
Look  at  Daniel  ])e  Foe;  recidlect 
him  pilloried,  bankrupt,  wearinjr 
away  his  life  to  pay  his  creditors  in 
full,  and  ilyint;  in  the  strugtfle  !  — 
and  his  works  live,  imitated,  cor- 
rupted, yet  casiiug  olF  the  stains, 
not  by  protection  of  law,  but  by 
theirowa  pure  essence.  Had  every 
sciiool-boy,  whooe  young  iiiuigina- 
tion  has  been  prompted  by  his  great 
work,  and  whose  heart  has  learned 
to  throb  in  the  strange  yet  familiar 
solitude  he  created,  given  even  the 
halfpenny  of  the  statute  of  Anne, 
there  would  have  been  no  want  of  a 
provision  for  his  children,  no  need 
of  a  subscription  for  a  statue  to  his 
memory ! 

"  'I'he  term  allowed  by  the  existing 
law  is  c'lriously  adapted  to  encour- 
age the  lightest  works,  and  to  leave 
the  noblest  unprotected.  Its  little 
span  is  ample  for  autliors  who  seek 
only  to  amuse ;  who,  '  to  beguile 
the  time,  look  like  the  lime ; '  who 


lend  to  frivolity  or  corruption  '  light- 
er wings  to  fly ; '  who  sparkle, 
blaze,  and  expire.  These  may  de- 
light for  a  season  —  glisten  as  the 
fire-flies  on  the  heaving  sea  of  public 
opinion  —  the  airy  proofs  of  the  in- 
tellectual activity  of  the  age;  — yet 
surely  it  is  not  just  to  legislate  for 
those  alone,  and  deny  all  reward  to 
that  literature  which  aspires  to  en- 
dure. Let  us  suppose  an  author, 
of  true  original  genius,  disgusted 
with  the  inane  phraseology  which 
had  usurped  the  place  of  poetry, 
and  devoting  himself  from  youth  to 
its  service ;  disdaining  the  gauds 
which  attract  the  careless,  and  un- 
skilled in  the  moving  accidents  of 
fortune  —  not  seeking  his  triumph 
in  the  temppstof  the  passions,  but  in 
the  serenity  which  lies  above  them, 

—  whose  works  shall  be  scoffed  at 

—  whose  name  made  a  by-word  — 
and  yet  who  shall  persevere  in  his 
high  and  holy  course,  gradually  im- 
j)ressin2  thoughtful  minds  with  the 
sense  of  truth  made  visible  in  the 
severest  forms  of  beauty,  until  he 
shall  create  the  taste  by  which  he 
shall  he  appreciated  —  influence,  one 
after  another,  the  master-spirits  of 
his  age  —  be  felt  pervading  every 
part  of  the  national  literature,  soft- 
ening, raising,  and  enriching  it ; 
and  when  at  last  he  shall  find  his 
confidence  in  his  own  aspirations 
justified,  and  the  name  which  once 
was  the  scorn  admitted  to  be  the 
glory  of  his  aire  —  he  shall  look  for- 
ward to  the  close  of  his  earthly  ca- 
reer, as  the  event  that  shall  conse- 
crate his  fame  and  deprive  his  child- 
ren of  the  opening  harvest  he  is  be- 
ginning to  reap.  As  soon  as  his 
copyrijjht  becomes  valuable,  it  is 
gone!     This  is  no  imaginary  case 

—  I  refer  to  one  who  '  iu  this  setting 


HISTORY    OF    LITERARY    PROPERTY. 


73 


Anne  to  be  passed.  From  his  time  to  the  present 
reign,  authors,  as  a  class,  seem  to  have  had  little  in- 
fluence in  parliament.^  Upon  nearly  all  occasions, 
when  their  claims  have  been  brought  to  the  attention 
of  the  legislature,  they  have  been  so  much  entangled 
with  the  interests  of  booksellers  and  publishers,  in 
whose  hands  the  great  mass  of  literary  property,  ex- 
isting at  the  time,  has  generally  been  found,  that  they 
have  had  to  encounter  all  the  national  prejudice 
against  monopolies.  Gradually,  however,  the  true 
merits  of  the  question  have  worked  themselves  free 
from  irrelevant  issues,  and  the  present  reign  has  be- 
come distinguished  by  a  measure,  of  which  it  was 
well  said,  in  advance,  by  a  venerable  poet  and  peti 


part  of  time  '  has  opened  a  vein  of 
the  deepest  sentiment  and  thought 
before  unknown  —  who  has  supplied 
the  noblest  antidote  to  the  freezing 
effects  of  tiie  scientific  spirit  of  the 
age  —  who,  wliilc  lie  has  detected 
that  poetry  which  is  the  essence  of 
the  greatest  things,  has  cast  a  "glory 
around  the  IcAvliest  conditions  of 
humanity,  and  traced  out  th^  subtle 
links  Ijy  which  they  are  connected 
with  the  highest^— of  one  whose 
name  will  now  find  an  echo,  not 
only  in  the  heart  of  tire  secluded 
student,  but  in  that  of  the^  busiest 
of  those  who  are  fevered  by  political 
controversy  —  of  ^y^Jliam  Words- 
worth. Ought  we  pot  to  requite 
such  a  poet,  while  yit^we^  may,  for 
the  injustice  of  our  boyhood  !  For 
those  \\,o{ks  which  are  now  insen- 
sibly quoted  by  our  nio^t  papular 
writer^  the  spirit  of  which  now 
mingles  with  our  intellectual  atmo- 
sphere, he  probably  has  not  received 
7 


through  the  long  life  he  has  devoted 
to  his  art,  until  lately,  as  much  as 
the  same  labor,  with  moderate  tal- 
ent, might  justly  produce  in  a  single 
year,  kjhall  the  law,  whose  term 
has  been  amply  sufficient  to  his 
scorners,  now  atTord  him  no  protec- 
tion, because  he  has  ouilasted  their 
scoffs  —  because  his  fame  has  been 
fostered  amidst  the  storms,  and  is 
now  the  growth  of  years  ?  "  (Three 
Sjieeches  delivered  in  the  house'of 
commons  m  favof  of,  a  me'asure  for 
an  extension  of  Copyright.  By  T. 
N".  Talfourd,  &erjeant-at-Law.  Lon- 
don. 1840.)  In  1838and  183!)  he 
made  similar  efforts,  and  the  mea- 
sure was  finally  carried  in  184*2. 

'  'I'he  petitions  of  the  authors  of 
England  to  the  house  (^f  (^cmmoiis, 
in  lavor  of, jMr.^erjoanu Talfourd "s 
bilT,«foim  a  body  of  interesting 
documents,  to  be  lound  in  the  tract 
from  which  the  above  exiract  is 
taken. 


74  LAW    OF    COPYRIGHT. 

tioner,  "  that  in  this,  as  in  all  other  cases,  justice  is 
capable  of  working  out  its  own  expediency."  ^ 


In  America,  since  the  adoption  of  the  constitution 
of  the  United  States,  the  protection  of  literary  pro- 
perty depends  upon  the  laws  passed  by  congress 
pursuant  to  the  power  granted  in  that  instrument. 
Whether  there  was  any  common  law  right  of  authors, 
in  published  works,  in  any  of  the  states  of  this  Union, 
before  the  adoption  of  the  constitution,  is  a  question 
not  free  from  difficulty. 

The  fundamental  principle  of  American  law,  in 
relation  to  common  law  rights,  is,  that  the  colonists 
brought  with  them  into  each  colony  all  the  body  of 
the  common  law  of  England  which  was  applicable  to 
their  situation,  or,  as  it  is  sometimes  said,  which  was 
suited  to  their  circumstances  and  condition.^  The 
existence  of  a  common  law  right  of  authors,  in  any 
one  of  the  American  colonies,  depends,  of  course, 
upon  its  existence  in  England,  when  the  colony  was 

*  Mr.  Wordsworth.  the  doctrine  thus  :     "  Our  ancestors, 

*  1  Story's  Commentaries  on  the  when  they  came  into  this  new 
Constitution,  137- 140.  Vannessu.  world,  claimed  the  common  law  as 
Packard,  2  Peters  .S.  C.  II.  144.  their  birthrif^ht,  and  brought  it  with 
Wheaton  u.  Peters,  8  lb.  501.  Par-  them,  except  such  parts  as  were 
.sons,  C.  J.  in  Commonwealth  v.  judged  inapplicable  to  their  new 
Knowlton,  2  Mass.  H  534,  slated  state  and  condition." 


HISTORY    OF    LITERARY    PROPERTY.  75 

settled,  and  also  upon  the  fact  of  its  having  been 
brought  by  the  colonists,  as  part  of  the  body  of  the 
common  law,  not  unsuited  to  their  circumstances  and 
condition.  That  this  was  the  case,  seems  to  have 
been  denied  by  a  majority  of  the  supreme  court  of 
the  United  States,  the  question  having  arisen, 
whether  there  was  any  copyright  at  common  law,  in 
relation  to  printed  books,  in  the  state  of  Pennsyl- 
vania.^ 

We  have  seen,  if  the  historical  account  given  in 
the  foregoing  pages  be  correct,  that  the  position  can- 
not be  maintained,  that  there  existed  in  England  no 
common  law  right  of  authors,  previous  to  the  settle- 
ment of  the  American  colonies.  It  is  clear,  that 
there  was  such  a  thing  as  literary  property  in 
England,  before  the  reign  of  Queen  Anne  ;  and  it 
is  equally  clear  that  in  the  years  1769  and  1774,  in 
the  cases  of  Millar  v.  Taylor,  and  Donaldson  v. 
Becket,  this  property  was  ascertained  and  declared 
to  have  been  a  right  at  common  law,  and  conse- 
quently it  must  have  existed  ever  since  the  intro- 
duction of  printing  into  England.  The  last  of  these 
cases,  if  the  answers  of  the  judges  are  the  proper 
criteria  of  the  decision,  decides  only  that  the  common 
law  right  had  been  taken  away  by  the  statute  of  Anne. 

'  Wheaton   v.    Peters,  8  Peters  opinion,  in  which  he  reviewed  the 

S.  C.  R.  591.     The  opinion  of  the  authorities   sliowinfr  that  the  cum- 

court  was  dehvered  by  Mr.  Justice  mon  law  riijlit  existed  in   Enfrlaiid 

McLean.      Mr.  Justice   Thompson  prior  to   the  statute  of  Anne,    and 

and  Mr.  Justice  Baklwin  dissented,  affirmed  tliat  this  riijht  formed  part 

the  former  in  an  able  and  instructive  of  the  common  law  of  Pennsylvania. 


76  LAW    OF    COPYRIGHT. 

How  far  this  portion  of  the  common  law  was  part 
of  the  common  law  of  any  American  colony,  depends 
not  upon  the  fact  of  the  colonists  having  or  not  hav- 
ing had  occasion  to  claim   and   act  upon  it,  on  their 
arrival,  but  upon  the  fact  of  there  being  or  not  being 
anything  in  their  situation,  during  their  early  colonial 
history,  so  inconsistent  with  it,  as  to  preclude  the 
idea  of  its  having  been  brought  by  ihem  along  with 
the  rest  of  the  body  of  the  common  law.     The  pre- 
sumption is,  that  the  whole  of  the  common  law,  as  it 
then  existed,  not  inapplicable  to  the  state  and  con- 
dition of  the  colonists,  was  brought  by  them  from 
England.     If  there  were  any  books  published,  in  any 
of  the  colonies,  at  any  time  before  they  legislated  on 
the  subject,  as  there  certainly  were  in  many  of  them, 
there  was  nothing  in   their   circumstances  and  situa- 
tion unsuited  to  such  a  right,  or  inconsistent  with  its 
being  claimed  and  recognized  as  part  of  the  common 
law.     There  were  objects  to  which  the  right  could 
a  tach,  and  any  author  could  claim   it  as  a  right  at 
the    common    law   of  England.      Undoubtedly,   the 
right   lay  dormant  in  all  the  colonies  for  a  long  pe- 
riod of  time  ;   and  afterwards,  when  books  began  to 
be  printed,  the  right  was  here,  as  in  England,  tacitly 
assumed  and  acted  upon.     There  is  some  evidence, 
however,  that  it  had  been  regarded  as  a  common  law 
right  in  several  of  the  states,  before  the  adoption  of 
the  constitution  of  the  United  States.^ 

'  So  far  as  the  decision  in  Whea-    of  the  common  law  right  of  authors 
ton  V.  Peters  negatives  the  adoption    in  the  colony  of  Pennsylvania,  I  do 


HISTORY    OF    LITERARY    PROPERTY.  77 

In  March,  1783,  the  legislature  of  Massachusetts 
passed  "  an  act  for  the  purpose  of  securing  to  authors 
the  exclusive  right  and  benefit  of  publishing  their 
literary  productions,  for  twenty-one  years."  This 
act  was  preceded  by  the  following  remarkable  pre- 
amble :  "  Whereas  the  improvement  of  knowledge, 
the  progress  of  civilization,  the  public  weal  of  the 
community,  and  the  advancement  of  human  happi- 
ness, greatly  depend  on  the  efforts  of  learned  and 
ingenious  persons  in  the  various  arts  and  sciences  : 
As  the  principal  encouragement  such  persons  can 
have  to  make  great  and  beneficial  exertions  of  this 
nature  must  exist  in  the  legal  security  of  the  fruits  of 
their  study  and  industry  to  themselves  ;  and  as  such 
security  is  one  of  the  natural  rights  of  all  men,  there 
being  no  property  more  peculiarly  a  man's  own  than 
that  which  is  produced  by  the  labor  of  his  mind  : 
therefore,  to  encourage  learned  and  ingenious  per- 
sons to  write  useful  books  for  the  benefit  of  mankind, 
Be  it  enacted,"  &c.^ 


not    feel  authorized  to  criticize  it,  not  be  asserted  at  common  law,  but 

although  I  have   made  some   sug-  under  the  statute."  (8  Peters,  660.) 

geslions  in  the  text  to  show  that  a  This   is  true  ;  but   if  Donaldson  v. 

different  view  may  be  taken  of  that  Beeket,  the  case  referred  to,  decides 

question.     But  that  part  of  the  deci-  anything,  it  is  that  the  common  law 

sion,    which   denies    the    existence  right  existed  anterior  to  the  statute 

of  llie   common  law  right  in  Eng-  of  Anne,  and  was  taken   away  by 

land,   I    must   dissent   from.      The  that  statute.     Upon  the  existence  of 

learned  jndije  who  pronounced  the  the  common    law  right   before   the 

opinion  of  the  majority,  said,   "the  statute,   the  judges  stood  seven  to 

question  was  involved  in  great  doubt  four;  and  if  the  known  opinion  of 

and  perplexity  ;    and  a  little  more  Lord  Mansfield   is  added,  eight  of 

than  a  century  ago  it  was  decided  the  twelve  judges  affirmed  the  ex- 

by  the  highest  judicial  court  in  Eng-  istence  of  the  right, 
land,  that  the  right  of  authors  could        *  1  Mass.  Laws,  91,  (edit.  ISOl.) 

7* 


78  LAW    OF    COPYRIGHT. 

This  preamble  has  been  justly  thought  to  recog- 
nize a  right  already  understood  to  exist,  and  it  seems 
manifestly  to  have  been  the  purpose  of  the  act  to 
provide  for  the  right  additional  security,  and  not  to 
create  it  dR  novo} 

Soon  after  this  act  was  passed,  on  the  27th  May, 
1783,  a  report  was  made  in  the  old  congress  by  Mr. 
Madison,  on  sundry  papers  and  memorials  on  the 
subject  of  literary  property,  and  the  following  reso- 
lution was  passed. 

"  Resolved,  That  it  be  recommended  to  the  seve- 
ral  states,  to  secure  to  the  authqrs  or  publishers  of 
any  new  books  not  heretofore  printed,  being  citizens 
of  the  United  States,  and  to  their  execyitors,  admin- 
istrators and  assigns,  the  copyright  of  such  books  for 
a  certain  time,  not  less  than  fourteen  years  from  the 
first  publication  ;  and  to  secure  to  the  said  authors, 
if  they  shall  survive  the  term  first  mentioned,  and  to 
their  executors,  administrators  and  assigns,  the  copy- 
right of  such  books  for  another  term,  or  time,  not 
less  than  fourteen  years  ;  such  copy  or  exclusive 
right  of  printing,  publishing,  and  vending  the  same, 
to  be  secured  to  the  original  authors  or  publishers, 


'  Tt  expresses  more  comprehen-  to  the  principles  of  natural  justice 

sively  tlian  any  other  piece  oflejs^is-  and  equity,  that  every  author  should 

laiion  in  the  language,  on  the  same  be  secured  in  receiving  the   profits 

subject,  the  principles  of  public  po-  that  may  arise  from  the  sale  of  his 

licy  and  private  right,  on  vi'hich  lit-  works  ;  and  such  security  may  en- 

erary  property  must  always  depend,  courage  men  of  learning  and  genius 

The  state  of  Connecticut  had  pre-  to  publish  their  writings,  which  may 

viously,  in  January,  1783,  passed  an  do  honor  to  their  country  and  ser- 

act  with   the  following   preamble:  vice  to  mankind."     (Cited  8  Peters 

*'  Whereas  it  is  perfectly  agreeable  S.  C.  R.  683.) 


HISTORY    OF    LITERARY    PROPERTY.  79 

their  executors,  administrators  and  assigns,  by  such 
laws  and  such  restrictions  as  to  the  several  states 
may  seem  proper."  ^ 

Pursuant  to  this  recommendation,  several  states 
passed  laws,  with  preambles  similar  to  those  of  the 
Massachusetts  and  Connecticut  acts,  alj  designed  to 
"  secure''  to  authors  the  profits  arising  from  the  sale 
of  their  works."  This  studied  phraseology,  which 
had  not  been  employed  in  the  English  statutes, 
evinces  some  intention  to  protect  and  secure  a  pre- 
existing right.  The  necessity  for  state  legislation 
was  soon  afterwards  superseded  by  the  constitution 
of  the  United  States,  (art.  1,  §  8,)  which  conferred 
upon  congress  power  "  to  promote  the  progress  of 
science  and  the  useful  arts,  by  securing,  for  limited 
times,  to  authors  and  inventors,  the  exclusive  right 
to  their  respective  writings  and  discoveries."  As 
the  states  could  not  separately  make  effectual  provi- 
sion for  these  objects,  the  power  was  wisely  granted 
to  the  national  government.^ 

The  first  act  passed  to  carry  this  provision  into 
effect,  so  far  as  it  related  to  authors,  was  the  act  of 
May  31st,  1790,  chap.  xv.  entitled  "  An  act  for  the 
encouragement  of  learning,  by  securing  the  copies 


*  8  Cong.  Joiirn.  257.     8  Peters  before  me,   whicli  was  entered   in 

S.  C.  R.  681.  New  York,  Pennsylvania  and  South 

'  Cited   8  Peters  S.   C.  R.   G83,  Carolina,  under  the  respeciive  laws 
684.    Authors  who  aimed  at  nation-  of  those  states,  in  the  year  1787. 
al  reputation  entered  their  works  in  ^  3  Story's  Com.  on   the   Consti- 
eaoh  of  the  states  which  had  passed  tution,  p.  48,  et  scq.     Tiie  Federal- 
such  laws.     A  copy  of  a  popular  ist.  No.  43. 
work  published  in  Alassachusctts  is 


80  LAW    OF    COPYRIGHT. 

of  maps,  charts  and  books,  to  the  authors  and  pro- 
prietors of  such  copies,  during  the  times  therein 
mentioned."  The  Supreme  Court  of  the  United 
States  have  held  that  this  act,  instead  of  sanctioning 
an  existing  perpetual  right  in  an  author  in  his  works, 
created  the  right  secured  for  a  limited  time  ;  and 
that  the  word  secure,  in  the  constitution,  does  not 
mean  the  protection  of  an  acknowledged  legal  right, 
but  is  used  in  reference  to  a  future  right  to  be 
created.^ 

If  this  decision  is  to  be  understood  as  declaring 
that  the  constitution  and  the  act  of  1790  created 
copyright  throughout  the  United  States,  it  may  be 
readily  assented  to.  We  find  the  states,  at  the  time 
of  the  establishment  of  the  constitution,  conferring 
upon  the  national  legislature  the  power  to  "secure" 
the  rights  of  authors  and  inventors.  Each  of  the 
states,  at  that  time,  possessed  the  power  to  secure 
these  rights  within  its  own  limits,  as  part  of  its  sove- 
reignty. But  no  state  legislature  could  provide 
securities  for  the  rights  of  authors  which  s  hould 
operate  over  the  whole  country,  and  make  a  copy- 
right of  a  book  written  and  published  in  Massachu- 
setts of  equal  validity  in  Pennsylvania.  In  order, 
however,  to  obviate  this  inconvenience,  the  state 
laws,  passed  before  the  adoption  of  the  federal  con- 
stitution, generally  contained  a  proviso,  that  the 
benefit  of  the  law  was  not  to  extend  to  authors,  in- 

>  Wheaton  v.  Peters,  8  Peters  S.  C.  R.  691. 


HISTORY    OF    LITERARY    PROPERTY.  81 

habitants  of,  or  residing  in  other  states,  until  such 
states  should  have  passed  similar  laws.' 

These  provisions  show  that  the  rights  of  authors 
in  their  published  Avorks  existed  by  statute,  in  some 
of  the  states,  before  the  constitution  of  the  United 
States  was  formed  ;  and  there  cannot  be  much  doubt 
that  they  also  existed,  in  the  older  states,  at  com- 
mon law.  What,  then,  were  the  rights  of  authors, 
to  be  "  secured,"  under  the  power  granted  to  the 
national  legislature  ?  The  object  to  be  gained  by 
this  grant  of  power  will  aid  in  determining  the  mean- 
ing of  the  language  employed.  The  object  clearly 
was  to  enable  the  general  government  to  make  laws 
which  should  secure  the  proceeds  of  a  book  in  all 
the  states  to  an  author  residing  and  publishing  in 
any  one  of  the  states.  The  old  congress  had  this 
object  in  view,  when  they  recommended  to  the  states 
to  pass  laws  for  this  purpose  ;^  and  it  was  distinctly 
urged,  by  the  advocates  for  the  adoption  of  the  fed- 
eral constitution,  as  the  main  reason  for  the  pro- 
vision.^ 

It  would  seem,  therefore,  that  the  rights  of  au- 
thors to  be  "secured"  by  congress,  under  this 
clause  of  the  constitution,  were  exclusive  rights  to 
take  the  profits  of  their  own  publications  throughout 
the  United  States.  In  this  view,  the  constitution 
and  the  act  of  1790  created  a  right  which  did  not 


1  1  Mass.  Laws,  94,  (edit.  1801.)         *  Ante,  p.  78. 
Wheaion  v.  Peters,  8  Peters  S.  C.         *  The  Federalist,  No.  43. 
R.  681,662,  683. 


82  LAW    OF    COPYRIGHT. 

exist  before  ;  and  this  may  account  for  the  use  of  the 
word  "  secure."  Whether  this  power  is  exclusive, 
so  that  the  states  cannot  now  legislate  for  the  pro- 
tection of  authors  within  their  own  limits,  is  one  of 
the  grave  questions  of  our  complex  system  of  gov- 
ernment.' 

The  act  of  1790  was  followed  by  a  supplementary 
act,  passed  April  29th,  1802,  which  extended  the 
benefits  of  the  former  statute  to  engravers.- 

By  an  act  passed  February  3d,  1831,  the  former 
laws  were  consolidated  and  revised,  and  this  act 
constitutes  the  existing  copyright  law  of  the  United 
States.^ 

•  See  Story's  Com.  on  the  Con-        '  See  Appendix,  4  U.  S.  Statutes 
stitution,  §  1149.  at  large,  436. 

"  See  Appendix,  2  U.  S.  Statutes 
at  large,  171. 


CHAPTER   II. 

OF  THE   SUBJECTS    OF   LITERARY  PROPERTY,   BEFORE 
AND  AFTER  PUBLICATION. 

In  the  following  chapter,  the  various  subjects  of 
literary  property,  both  before  and  after  publica- 
tion, will  be  considered  in  detail. 

I.  And  first,  with  regard  to  that  class  of  writings, 
to  which  rights  and  remedies  have  been  applied, 
bearing  a  close  analogy  to  those  applicable  to  copy- 
rights, viz.  writings  existing  in  manuscript  and  un- 
published. We  have  already  seen  that  in  general, 
the  author  or  owner  of  an  unpublished  manuscript 
possesses  a  property  therein,  which  consists  in  the 
right  to  appropriate  it  to  such  uses  as  he  shall 
please.'  This  is  a  right  at  common  law,  and  is  of 
course  wholly  independent  of  the  statutes  which 
create  a  property  after  publication,  consisting  in  the 
exclusive  right  to  the  profits  of  publication.  The 
existence  of  such  a  property  has  been  repeatedly 
recognized  with  regard  to  many  sorts  of  compo- 
sitions, and  it  is  now  perfectly  well  settled,  that 
the   author   or   proprietor  of  an   unpublished  man- 

'  Ante,  p.  49-52. 


84  LAV*'"    OF    COPYRIGHT. 

uscript  may  obtain  the  interference  of  a   court  of 
equity,  to  prevent  its  unauthorized  publication.^ 

This  right  of  property  rests  upon  one  of  the  ulti- 
mate foundations  which  sustain  property  in  general ; 
namely,  the  right  which  every  man  has  to  the  exclu- 
sive possession  and  control  of  the  products  of  his 
own  labor.  In  the  great  case  of  Millar  v.  Taylor,  in 
which  the  principles  on  which  this  right  depends 
were  so  fully  examined,  Lord  Mansfield  declared 
that  the  source  from  which  the  common  law  is 
drawn,  in  respect  of  a  copy  before  publication,  is 
this  —  "  Because  it  is  just,  that  an  author  should 
reap  the  pecuniary  profits  of  his  own  ingenuity  and 
labor.  It  is  just  that  another  should  not  use  his  name 
without  his  consent.  It  is  Jit,  that  he  should  judge 
when  to  publish,  or  whether  he  ever  will  publish. 
It  is  Jit,  he  should  not  only  choose  the  time,  but 
the  manner  of  publication  ;  how  many  —  what  vol- 
ume—  what  print.  It  is  Jit,  he  should  choose  to 
whose  care  he  will  trust  the  accuracy  and  correct- 
ness of  the  impression  ;  to  whose  honesty  he  will 
confide,  not  to  foist  in  additions."^ 

'  Webb   V.  Rose,   cited  4  Burr.  '  Millar  v.  Taylor,  4  Burr.  2398. 

2330 ;  2  Bro.  P.  C.  138  ;  Forrester  Sir   W.    D.    Evans    has   intimated 

V.  Walker,  cited  ut  supra.     PopeiJ.  strong  doubts  of  the  correctness  of 

Curl,  2  Atk.  342;  Manley  u.  Owen,  Lord   Mansfield's   reasoning  in  this 

cited  4  Burr.  23iJ0,  2490.     Duke  of  case  on  the  subject  of  a  property  in 

Queensbury  v.  Shebbeare,  2  Eden's  manuscripts,  or  what   his   lordship 

Ch.  Ft.  32!J  ;  tioutbey  v.  Sherwood,  accurately   calls,    in   technical  lan- 

2  Mcriv.  434;    Macklin  v.  Richard-  guage,  "  copij,  before  publication." 

son,  Amb.  094  ;   Donaldson  u.  Beck-  Lord    Mansfield's    argument    was, 

et,  4  Burr.  2408  ;     Wheaton  v.  Pe-  that  the  same  principles  of  justice 

ters,  8  Peters  S.  C.  R.  591,  6G1  ;  and  fitness,  which  are  the  admitted 

2  Story's  Eq.  Jurisp.  §  943  ;  Eden  foundation  of  an  author's  sole  right 

on  Inj.  ch.  13,  p.  275,  27G.  before  publication,  apply  to  his  right 


MANUSCRIPTS. 


85 


The  incorporeal  right  in  an  unpublished  manu- 
script belongs  exclusively  to  the  author,  and  cannot 
be  seized  by  creditors,  to  the  effect  of  entitling  them 
to  publish  it.^ 


after  publication ;  and  that  as  the 
common  law  recojjnizes  and  protects 
the  former,  it  follows  that  the  latter 
is  equally  a  right  at  common  law, 
unless  the  act  of  publication  is  to  be 
taken  as  an  abandonment  of  the 
right,  which  he  denies.  Sir  W.  D. 
Evans  seems  to  think  that,  as  the 
house  of  lords  in  Donaldson  v.  IJcck- 
et,  overthrew  the  decision  in  Millar 
V.  Taylor,  and  declared  that  there 
is  no  perpetual  right  at  common 
law  in  published  works,  the  reason- 
ing of  Lord  Mansfield  on  the  subject 
of  a  copy  in  manuscripts  is  also  proba- 
bly overruled.  He  closes  some  ex- 
tended remarks  with  the  following 
observation  :  "  Lord  Mansfield,  to 
support  the  perpetual  right  to  works 
published,  argues  that  an  unpub- 
lished manuscript  cannot  be  distin- 
guished from  them  ;  and  may  not 
that  argument  now  be  applied  to  the 
ultimate  decision  of  the  house  of 
lords  against  a  perpetual  common 
law  right  of  publications,  and  ex- 
tended to  manuscripts!  "  2  Evans's 
Statutes,  20,  note  [11].  See  also 
his  edition  of  Lord  Mansfield's 
decisions,  vol.  i.  p.  38G,  note  (h). 
The  learned  commentator  seems 
not  to  have  carefully  considered 
the  points  actually  decided  in  Do- 
naldson V.  Becket.  An  analysis  of 
the  questions  put  to  the  judges, 
and  of  their  answers,  exhibits  the 
force  of  that  decision.  Eleven 
judges  attended,  and  gave  their 
answers.  Ten  were  of  opinion 
that  at  common  law,  an  author  of 
any  literary  composition  had  the 
sole  right  of  first  printing  and  pub- 
lishing tlie  same  for  sale,  and  might 
8 


bring  an  action  against  any  person 
who  printed,  published  and  sold  the 
same  without  his  consent ;  eight 
were  of  opinion  that  the  law  did  not 
take  away  his  right,  upon  his  print- 
ing and  publishing  such  book  or 
literary  composition,  and  four  were 
of  the  contrary  opinion.  Six  were 
of  opinion  that  the  author's  right  of 
action  at  common  law,  after  he  had 
published,  is  taken  away  by  the 
statute  8  Anne,  and  that  he  has  no 
remedy  except  on  the  foundation 
of  that  statute  ;  while  five  were 
of  opinion  that  the  statute  did  not 
take  away  the  common  law  right  of 
action.  It  is  manifest,  therefore, 
that  this  decision  confirms,  in  the 
most  solemn  manner,  the  doctrine  of 
a  sole  right  before  publication,  as 
part  of  the  common  law  ;  that  it 
negatives  the  position  that  publica- 
tion alone  takes  away  the  right,  but 
that  it  decides,  by  a  bare  majority 
of  the  judges  who  spoke,  that  the 
sole  right  at  common  law  to  multi- 
ply copies,  after  publication,  is  taken 
away  by  the  statute,  and  depends 
wholly  upon  the  terms  and  condi- 
tions of  the  act.  See  ante,  p.  58,  5'J. 
'  Mr.  Bell  says,  "  The  right  at 
common  law  can  exist  only  while 
the  composition  remains  uniuiblish- 
ed.  But  the  property  of  unpui)lish- 
ed  literary  compositions  is  not  within 
the  reach  of  creditors,  to  the  efiect 
of  entitling  them  to  ptiblish  them. 
No  man  can  be  forced,  by  any  op- 
eration of  the  law,  to  publish  his 
thoughts,  even  for  the  benefit  of  his 
creditors.  And  his  rigiit  of  with- 
holding the  publication  will  con- 
tinue till  the  very  moment  his  book 


86 


LAW    OF    COPYRIGHT. 


This  property  in  copy  descends  to  personal  re- 
presentatives, though  neither  the  author  nor  his 
representatives  have  any  manuscript  whatever  of 
the  work.  Thus,  the  copy  of  Lord  Clarendon's 
History,  at  the  distance  of  near  a  hundred  years, 
was  adjudged  to  his  representatives,^  and  Lord 
Mansfield  thought  that  although  the  manuscript 
in  the  defendant's  hands  might  have  been  the  only 
copy  in  existence,  they  could  not  print  and  pub- 
lish without  the  plaintiff's  consent."  In  like  man- 
ner, the  son  and  devisee  of  Mr.  Webb,  a  convey- 


is  actually  given  out  to  the  public. 
Even  the  printer  of  the  book  -will 
not  be  entitled  to  sell  it  for  his  pay- 
ment, although  there  is  not  the 
smallest  doubt  that  he  has  a  com- 
plete lien  over  it  till  delivery,  to  pre- 
vent the  author,  or  his  creditors, 
from  taking  advantage  of  the  publi- 
cation till  he  shall  be  paid.  When 
a  book  is  published,  the  property 
of  it  forms  a  subject  which  creditors 
are  entitled  to  attach  and  sell :  and 
the  price  unpaid  by  the  bookseller  is 
as  completely  open  to  the  diligence 
of  creditors,  as  the  price  of  any 
other  commodity  or  piece  of  mer- 
chandise."    1  Bell's  Com.  p.  68. 

'  Duke  of  Queensbury  v.  Sheb- 
beare,  2  Eden's  Ch.  R.  3-29. 

"  4  Burr.  2397.  The  facts  of  the 
case  were  these.  Henry,  the  sec- 
ond Earl  of  Clarendon,  son  of  the 
lord  chancellor  and  historian,  gave 
to  one  G  Wynne  the  original  MSS.  of 
his  father's  history,  in  order  that  he 
might  take  a  copy  of  it,  and  make 
use  of  the  copy  as  he  should  think 
fit ;  and  a  copy  was  accordingly 
taken.  The  administrator  of  Lord 
Clarendon,  the  son,  brought  a  bill 
to  restrain   the   publication  of  this 


work  by  Dr.  Shebbeare,  to  whom 
Gwynne's  son  had  sold  or  delivered 
the  MSS.  The  lord  keeper,  Hen- 
ley, was  of  opinion  that  it  was  not 
to  be  presumed  that  when  Lord 
Clarendon,  the  son,  gave  the  elder 
Gwynne  a  copy  of  his  father's  MSS. 
he  intended  he  should  have  the 
right  to  print  it ;  that  Mr.  Gwynne 
might  make  every  use  of  it  except 
that.  Duke  of  Queensbury  v.  Sheb- 
beare, 2  Eden's  Ch.  R.  329.  Upon 
this  case  Lord  INIansfield  observes, 
"Mr.  Gwynne  was  entitled,  un- 
doubtedly, to  the  -pajKr  of  the  tran- 
script of  Lord  Clarendon's  history; 
which  gave  him  the  power  to  print 
and  publish  it,  after  the  fire  at  Peters- 
ham, which  destroyed  one  original. 
This  might  have  been  the  only  man- 
uscript of  it  in  being,  Mr.  Gwynne 
might  have  thrown  it  into  the  fire, 
had  he  pleased.  But,  at  the  dis- 
tance of  near  a  hundred  years,  the 
copy  was  adjudged  the  property  of 
Lord  Clarendon's  representatives; 
and  Mr.  Gwynne's  printing  and  pub- 
lishing it,  without  their  consent, 
was  adjudged  an  injury  to  that  pro- 
perty ;  for  which,  in  different  shapes, 
he  paid  very  dear."    4  Burr.  2397. 


MANUSCRIPTS.  87 

ancer,  obtained  an  injunction  against  his  father's 
clerk,  to  prevent  him  from  printing  his  father's  man- 
uscript draughts.^  So  also,  the  assignees  of  the 
writings  of  President  Washington,  who  derived  their 
title  through  his  devisee,  obtained  an  injunction 
against  certain  persons  who  had  pirated  them  from 
the  edition  published  by  them.- 

Under  what  circumstances  the  author  or  proprietor 
of  a  manuscript  may  be  deemed  to  have  authorized 
its  publication,  is  a  question  of  some  nicety  as  well 
as  importance.  Merely  parting  with  the  possession 
of  a  manuscript,  or  intrusting  the  possession  to  a 
third  person,  are  acts  which  do  not  carry  with  them 
proof  of  an  intent  to  part  with  the  ownership  of  the 
intellectual  contents.  Such  acts  must  be  limited,  in 
point  of  effect,  to  the  purposes,  expressed  or  implied, 
for  which  the  possession  was  given.^  Thus  the  giving 
of  a  manuscript  copy  of  Lord  Clarendon's  history, 
to  be  used  as  the  donee  should  think  fit,  was  held 
not  to  have  authorized  its  publication,'*  and  the  pos- 
session of  letters  by  the  person  to  whom  they  were 
addressed,  does  not  take  away  from  the  writer  the 
right  to  object  to  their  publication.^  So  the  allowing 
a  manuscript  play  to  be  acted  will  not  amount  to  a 
license  to  publish  it.*^     And  where  copies  of  a  piece 

'  Cited  in   Millar  v.   Taylor,  4  '  2  Story's  Eq.  Jurisp.  §943. 

Burr.  2330.     See  also  Thompson  i'.  *  Duke  of  Queensbury  v.  Sheb- 

Stanhope,  Amb.  739.     Earl  of  Gra-  beare,  2  Eden's  Ch.  R.  329. 

nardu.  Dunkin,  1  Ball  &  Beat.  207.  ^  Pope    v.   Curll,    2  Atk.    312. 

Folsom  V.  Marsh,  2  Story's  R.  100.  Thompson  v.  Stanhope,  Amb.  773. 

•  Folsom  V.  Marsh,  2  Story's  R.  *  Macklin  v.  Richardson,  Ambl. 

100,  168.  694. 


88  LAW    OF    COPYRIGHT. 

of  music  had  been  distributed  in  manuscript  for  a 
year,  by  the  author,  before  it  was  printed,  it  was 
held  that  the  copyright  was  not  lost.^  But  Lord 
Eldon  seems  to  have  thought  that  the  circum- 
stances in  Mr.  Southey's  case,  where  he  had  left 
his  manuscript  a  long  time  in  the  hands  of  a  pub> 
lisher,  without  inquiry,  authorized  the  inference 
that  he  had  abandoned  his  own  right  as  author.^ 
Perhaps  the  soundest  rule  would  be,  to  hold  that 
when  express  consent  is  not  proved,  the  nega- 
tive is  implied  as  a  tacit  condition.^  Most  of  the 
cases  seem  to  proceed  upon  this  principle,'^  and  it 
was  adopted  and  acted  upon  by  Mr.  Justice  Story,  in 
relation  to  the  writings  of  Washington,  consisting  of 
his  correspondence,  addresses,  messages  and  other 
papers,  official  and  private.^  The  ground  was  taken 
in  this  case  that  these  writings  were  public  in  their 
nature  and  were  intended  by  the  author  for  public  use. 
But  the  facts  of  the  case  did  not  show  that  General 
Washington  intended  them  as  a  donation  to  the  pub- 
lic, and  the  court  laid  down  the  principle,  that  un- 
less there  be  a  most  unequivocal  dedication  of  private 
letters  and  papers  by  the  author,  either  to  the  public 
or  to  some  private  person,  the  author  has  a  property 
therein,   and  the  copyright  thereof  exclusively  be- 


'Whiteu.Gcrooch,2B.&A.290.  ■•  Thompson  v.   Stanhope,  Amb. 

*  Southey  v.  Sherwood,  2  Meriv.  737.    Duke  of  Queensbury  v.  Sheb- 

See   some    observations   upon  tliis  beare,  2  Eden, 

case,  anle.  *  Folsom  v.  Marsh,  2  Story's  R. 

^  Per  Willes  J.  in  Millar  v.  Tay-  100,  109. 
lor,  4  Burr.  2330. 


LETTERS. 


89 


longs  to  him/  In  the  United  States,  manuscripts 
are  now  under  the  protection  of  the  statute  of  1831, 
which  gives  a  remedy,  at  law  and  in  equity,  against 
any  person  who  shall  print  or  publish,  or  be  about 
to  publish  any  manuscript  whatever  without  the  con- 
sent of  the  author  or  legal  proprietor  first  obtained, 
if  the  author  or  proprietor  be  a  citizen  of  or  resident 
in  the  United  States.^ 

II.  Letters,  addressed  from  one  correspondent 
to  another,  have  formed  the  subject  of  special  dis- 
cussion in  courts  of  equity,  and  the  principles  on 
which  the  respective  rights  of  the  parties  depend  are 
analogous  to  those  which  govern  in  the  case  of  other 


'  The  learned  judge  said,  "In  re- 
lation to  this  objection,  it  is  most  man- 
ifest, that  President  Washington 
deemed  them  his  own  private  pro- 
perty, and  bequeathed  them  to  his 
nephew,  the  late  Mr.  Justice  Wash- 
ington, through  whom  the  late  Mr. 
Ch.  Justice  Marshall  and  Mr.  Sparks 
acquired  an  interest  therein  ;  and,  as 
appears  from  the  contract  between 
these  gentlemen,  annexed  to  the  re- 
port, tiic  puidication  of  these  writ- 
ings was  undertaken  by  Mr.  Sparks, 
as  editor,  for  their  joint  benefit ; 
and  the  work  itself  has  been  ac- 
complished at  great  expense  and  la- 
bor, and  after  great  intellectual  ef- 
forts, and  very  patient  and  compre- 
hensive researches,  both  at  home 
and  abroad.  The  publication  of  the 
defendants,  therefore,  to  some  ex- 
tent, must  be  injurious  to  the  rights 
of  prnpi>rty  of  the  representatives 
and  assignees  of  President  Wash- 
ington. Indeed,  as  we  shall  pre- 
8* 


sently  see,  congress  have  actually 
purchased  these  very  letters  and 
manuscripts,  at  a  great  price,  for  the 
benefit  of  the  nation,  from  their 
owner  and  possessor  under  the  will 
of  Mr.  Justice  Washington,  as  pri- 
vate and  most  valuable  property. 
That  President  Washington,  there- 
fore, intended  ihem  exclusively  for 
public  use,  as  a  donation  to  the  pub- 
lic, or  did  not  esteem  them  of  value 
as  his  own  private  property,  ap- 
pears to  me  to  be  a  proposition, 
completely  disproved  by  the  evi- 
dence. Unless,  indeed,  there  be  a 
most  unequivocal  dedication  of  pri- 
vate letters  and  papers  by  the  au- 
thor, either  to  the  pul)lic.  or  to  some 
private  person,  I  hold,  that  the  au- 
thor has  a  property  therein,  and  that 
the  copyright  thereof  exclusively 
belongs  to  him." 

*  Act  of  Congress  of   3d   Feb. 
1831,  ^9. 


90 


LAW    OF    COPYRIGHT. 


manuscript  writings.  It  may  be  well  briefly  to  re- 
view the  authorities  on  this  subject,  in  their  histori- 
cal order. 

The  first  case  is  that  relating  to  the  letters  of  Pope 
to  Swift.  Mr.  Pope  obtained  an  injunction  against 
Curll  the  bookseller,  to  prevent  the  vending  of  a  book 
containing  his  letters  to  Swift.  The  ground  was 
taken,  on  a  motion  to  dissolve  the  injunction,  that  a 
letter  is  in  the  nature  of  a  gift  to  the  receiver. 
Lord  Hardwicke  said  he  was  of  opinion  that  it  is  only 
a  special  property  in  the  receiver,  possibly  the  pro- 
perty of  the  paper  may  belong  to  him  ;  but  this  does 
not  give  a  license  to  any  person  whatsoever  to  pub- 
lish it  to  the  world,  for  at  most  the  receiver  has 
only  a  joint  property  with  the  writer.^  The  objec- 
tion was  also  raised,  that  the  letters  were  only  on 
familiar  subjects,  and  the  book  could  not  properly 
be  called  a  learned  work.  But  his  lordship  did  not 
admit  the  distinction."  An  injunction  was  granted 
against  the  letters  written  by  Pope,  but  not  against 
the  rest  of  the  book. 

The  next  case  related  to  Lord  Chesterfield's  letters 
to  his  son,  containing  characters  of  persons,  besides 
disquisitions  on  politics,  literature  and  education. 
The  widow  of  the  son,  in  whose  possession  the  let- 
ters remained,  restored  to  Lord  Chesterfield  some 


'  Pope  V.  Curll,  2  Atk.  342.    Mr.  print,  when  the  injunction  was  ob- 

Popc  had  no  copies  of  these  letters,  tained.     Lord   Hardwicke  held  that 

See  Lord  Mansfield's  statement,  4  a   book  of  letters   was  within  the 

Burr.  2307.  grounds  and  intention  of  the  act  of 

*  It  seems  that  the  book  was  in  Anne,  as  much  as  any  other  work. 


LETTERS.  91 

of  the  characters,  at  his  request,  but  kept  copies  of 
them  ;  and  she  also  kept  the  rest  of  the  original  let- 
ters, which  he  did  not  ask  for.  After  Lord  Chester- 
field's death,  she  was  about  to  publish  the  letters, 
not  including  the  characters,  when  his  executors  ap- 
plied for  an  injunction.  Lord  Apsley,  C.  granted 
the  injunction,  upon  the  ground  that  the  defendant 
had  not  obtained  the  consent  of  Lord  Chesterfield  or 
his  executors.^ 

The  case  of  Perceval  v.  Phipps,  next  in  point  of 
time,  seems  to  admit  the  right  of  the  holder  of  letters 
to  publish  them,  where  the  publication  is  necessary 
to  the  defence  of  his  character  against  an  unjust  im- 
putation.- The  acts  of  the  parties  in  this  case  sup- 
plied reasons  for  not  restraining  the  publication. 

In  Gee  v.  Pritchard,  the  doctrine  of  property  in 
the  writer,  in  letters  of  familiar  friendly  correspond- 
ence, was  admitted  by  Lord  Eldon,  as  well  as  the 
qualified  property  of  the  receiver  ;  but  as  the  latter 
had  returned  the  letters  to  the  writer,  with  the  de- 
claration that  he  did  not  consider  himself  entitled  to 
retain  them,  keeping  copies  without  apprizing  her, 
it  was  held,  under  the  circumstances,  that  he  had 
renounced  the  right  of  publication,  even  if  he  pre- 
viously had  it  for  purposes  of  self-vindication.^ 

In  explaining  the  grounds  upon  which  the  court 
acts  in   these  cases,  his  lordship  observed,  that  the 

'  Thompson  t" .  Sianhope,  Amb.  '  Gee  r.  PiilcliarJ,  2  Swanst. 
737.  -10-2,  [-27. 

*  Lord    and    Lady    Perceval    v. 
Phipps,  2  Ves.  &  B.  19. 


92  LAW   OF   COPYRIGHT. 

property  is  qualified  in  some  respects ;  that,  by  send- 
ing a  letter,  the  writer  has  given,  for  the  purpose  of 
reading  it,  and  in  some  cases  of  keeping  it,  a  property 
to  the  person  to  whom  the  letter  is  addressed  ;  yet, 
that  the  gift  is  so  restrained,  that,  beyond  the  pur- 
poses for  which  the  letter  is  sent,  the  property  is  in 
the  sender.  Under  such  circumstances,  it  is  immate- 
rial whether  the  intended  publication  is  for  the  pur- 
pose of  profit  or  not.  If  for  profit,  the  party  is  then 
selling  ;  if  not  for  profit,  he  is  then  giving  that,  a  por- 
tion of  which  belongs  to  another.  Property,  there- 
fore, is  the  ground  of  the  interference  of  the  court. 
From  these  decisions  it  is  not  difficult  to  extract 
the  general  doctrines  which  govern  the  interference 
of  courts  of  equity,  in  cases  of  this  class.  1.  The 
leading  principle  is,  that  the  writer  of  letters  has 
such  a  qualified  property  in  them,  as  will  intitle  him 
to  an  injunction  to  restrain  their  publication  by  the 
party  written  to,  or  his  assignees  or  representatives. 
2.  That  this  qualified  property  descends  to  represent- 
atives. 3.  That  it  is  a  right  of  property  independent 
of  the  right  to  take  the  profits  of  publication,  and  con- 
sequently does  not  depend  upon  or  involve  the  pecu- 
niary value  of  the  letters  proposed  to  be  published. 
4.  That  for  the  purposes  of  justice  publicly  adminis- 
tered, in  the  ordinary  modes  of  proceeding,  or  to 
vindicate  his  character  from  an  accusation  publicly 
made,  the  receiver  of  letters  may  publish  them.^ 

•  Percevalu.  Phipps,  2Ves.  &  B.     2  Story's  R.  100,  110,  111.     2  Sto- 
19.     Gee  r.  Pritcliard,  2  Swanst.     ry's  Eq.  Jurisp.  ^  948. 
418,  426,  427.     Folsom  v.  Marsh, 


LETTERS. 


93 


But  a  doubt  has  been  suggested,  whether  mere 
private  letters,  not  intended  as  literary  compositions, 
are  entitled  to  the  protection  of  an  injunction  in  the 
same  manner  as  compositions  of  a  literary  character.' 
This  doubt  has  probably  arisen  from  the  habit  of  not 
discriminating  between  the  different  rights  of  pro- 
perty which  belong  to  an  unpublished  manuscript, 
and  those  which  belong  to  a  published  book.  The 
latter,  as  I  have  intimated  in  another  connection,  is  a 
right  to  take  the  profits  of  publication.     The  former 


'  By  Sir  Thomas  Plumer,  vice- 
chancellor,  in  Perceval  v.  Phipps,  2 
V,  &  B.,  and  Mr.  Chancellor  Wal- 
worth, in  Brandreth  v.  Lance,  8 
Paige's  R.  21,  26.  In  the  former 
case,  the  vice-chancellor  thought 
that  the  letters  of  Pope  and  of  Lord 
Chesterfield  derived  their  risht  to 
protection  from  their  character  as 
literary  compositions.  But  there  is 
no  evidonoo  in  either  case,  as  report- 
ed, to  show  that  either  of  the  wri- 
ters intended  those  letters  for  litera- 
ry compositions,  or  wrote  them  with 
a  view  to  publication.  In  Pope  v. 
Curll,  Lord  Ilardwicke  dealt  with 
the  subject,  on  one  point,  as  a  book, 
because  it  was  already  printed  by 
the  defendant.  Sec  2  Atk.  342. 
"With  regard  to  Lord  Chesterfield's 
Letters,  however  elegantly  written, 
the  case  presents  only  a  domestic 
correspondence  between  fothcr  and 
son.  They  certainly  were  not  writ- 
ten for  publication,  so  far  as  we  can 
judge  from  the  report  in  Ambl.  737. 
In  like  manner, .Mr.  Chancellor  Wal- 
worth (8  Paige,  27,)  supposes  that 
Lord  Eldon,  in  Gee  v.  Pritchard, 
went  the  length  of  allowing  the  rem- 
edy for  a  right  of  property,  where 
the  plaintiff's  interest  was  no  other 


than  that  of  violated  feelings.  He 
says,  "The  complainant's  bill  was 
not  to  prevent  the  publication  of  her 
letters  on  account  of  any  supposed 
interest  she  had  in  them  as  literary 
property,  but  to  restrain  the  publi- 
cation of  a  private  correspondence, 
as  a  matter  of  feeling  only."  8  Paige, 
28.  The  learned  chancellor  seems 
to  understand  Lord  Eldon's  use  of 
the  term  "  property  "  to  refer  to  a 
subject  of  pecuniary  value  :  whereas 
it  is  clear  that  his  lordship  uses  it  in 
reference  to  private  correspondence, 
which  has  no  pecuniary  value  for 
purposes  of  publication,  when  he 
speaks  of  a  joint  property  in  the 
writer  and  the  receiver  of  a  letter. 
See  his  observations,  cited  in  the 
text,  ante,  from  2  Swanst.  415. 
This  is  equally  manifest  from  his  lord- 
ship's remark  on  the  case  of  Perceval 
I'.  Phipps,  which  he  did  not  under- 
stand to  have  denied  Lady  Perceval's 
profcrty  in  the  letters.  See  2 
Swanst.  415.  So,  too,  he  says  that 
his  predecessors  did  not  inquire 
whether  the  intention  of  the  writer 
was  or  was  not  directed  to  publica- 
tion, lb.  p.  414.  Such  an  inten- 
tion must  be  the  only  sensible  test 
of  the  literary  character  of  a  letter. 


94  LAW    OF    COPYRIGHT. 

is  a  right  to  control  the  act  of  publication,  and  to 
decide  whether  there  shall  be  any  publication  at  all. 
It  has  been  called  a  right  of  property  ;  an  expression 
perhaps  not  quite  satisfactory,  but  on  the  other  hand 
sufficiently  descriptive  of  a  right  which,  however  in- 
corporeal, involves  many  of  the  essential  elements  of 
property,  and  is  at  least  positive  and  definite.  This 
expression  can  leave  us  in  no  doubt  as  to  the  meaning 
of  the  learned  judges  who  have  used  it,  when  they 
have  applied  it  to  cases  of  unpublished  manuscripts. 
They  obviously  intended  to  use  it  in  no  other  sense, 
than  in  contradistinction  to  the  mere  interests  of 
feeling,  and  to  describe  a  substantial  right  or  legal 
interest.^ 

If  this  be  the  correct  view  of  the  adjudged  cases, 
it  follows  that  there  can  be  no  sound  distinction  be- 
tween private  letters  or  letters  of  friendship  or  busi- 
ness, and  letters  intended  as  literary  compositions, 
so  far  as  the  remedy  afforded  to  the  writer  by  courts 
of  equity  is  concerned.  In  either  case,  the  writer 
proceeds,  when  seeking  that  remedy,  upon  a  right 
which  the  courts  have  recognized  as  a  right  of  pro- 
perty ;  though  in  the  case  of  letters  which  the  wri- 
ter intended  for  publication  and  profit,  his  right 
has  the  other  element  of  an  anticipated  loss  of 
pecuniary  profits.  Indeed,  there  is  a  moral  reason 
why  the  rights  of  property  should  not  be  deemed  to 

'  Gee  V.   Pritchard,   2  Swanst.  Leclerc,  1  Martin's  Louis.  R.  297. 

403.       Southey    v.    Sherwood,    2  2  Story's  Eq.  Jurisp.  (^  945,  948  a. 

Meriv,  435.     Folsom  v.  Marsh,  2  Ante,  note,  p.  93. 
Story's  R.  100, 108,  109.     Denis  v. 


LETTERS.  95 

exist  only  when  the  letters  are  literary  compositions, 
which  has  been  pointed  out  by  an  eminent  jurist. 
"If  the  mere  sending  of  letters  to  third  persons  is 
not  to  be  deemed,  in  cases  of  literary  composition,  a 
total  abandonment  of  the  right  of  property  therein 
by  the  sender ;  a  fortiori,  the  act  of  sending  them 
cannot  be  presumed  to  be  an  abandonment  thereof 
in  cases  where  the  very  nature  of  the  letters  imports, 
as  matter  of  business,  or  friendship,  or  advice,  or 
family  or  personal  confidence,  the  implied  or  neces- 
sary intention  and  duty  of  privacy  and  secrecy.^ 

There  is  another,  and,  as  it  seems  to  me,  decisive 
objection  to  the  supposed  distinction  between  pri- 
vate letters  and  letters  of  a  literary  character.  It  is 
impossible  to  make  any  such  distinction,  in  point  of 
fact.-     Literary  subjects,  elegance  and  finish  of  style, 

'  2  Story's  Eq.  Jurisp.  ^  947.  learned    author    thinks,    that     the 

*  Mr.  Godson  has  divided  episto-  ground   on  which  courts  of  equity 

lary  writings  into  three  classes  :   1.  have  interfered  to  prevent  publica- 

Letters  originally  intended  for  the  tion,  is  "  not  upon  copyright,  but 

press,  constituting  a  literary  work,  that  the  publication  is  a  breach  of 

to  vyhich  the  form  of  epistolary  com-  contract,  or  confidence,  or  when  they 

position  is  given  as  a  matter  of  dress,  are  to  be  made  a  source  of  profit,  at 

2.  Letters  which  have  actually  pass-  the  risk  of  wounding  private  feel- 

ed  from  one  person  to  another,  but  ings."    Godson  on  Patents,  &e.  327, 

which,  from  the  nature  of  the  sub-  328.     It  will   be   seen  that  I  have 

Ject,  and  the  literary  character  of  the  taken  a  very  different  view  both  of 

writer,  may  be  considered,  ichen  a  the  authorities,  and  of  the  supposed 

great  number  of  them  are  collected,  distinction  between  different  classes 

as    forming   -a    literary   work.     3.  of  letters.     As  to  the  authorities,  it 

Common  letters  on  business,  and  on  is  clear   that  they  proceed  upon  a 

every  subject  that  can  occur  in  the  property    in  the   writer,   and   upon 

intercourse  of  private  life,  but  which  nothing  else,  whether  the  letters  are 

never  could  have'  been  intended  to  be  of  one  class  or  another.     As  to  the 

published,  and  therefore  cannot  be  distinction,   it  may  well   be  asked, 

considered   as  lUerarij  compositions,  what   degree  of  scholarship,  what 

and    entitled    to   protection,    on  the  number  of  letters,  and  what  subject, 

ground  of  a  copyright   existing  ni  are  to  determine  whether  a  man's 

them.     As  to  the  latter  class,  the  letters  are  to  be  considered  as  tak- 


96  LAW    OF    COPYRIGHT. 

elaborate  and  beautiful  writing,  eloquent  description, 
may  all  be  found  in  letters  of  friendship,  as  much  as 
personal  anecdote  or  topics  of  domestic  interest. 
What  is  the  friendly  correspondence  of  the  learned, 
but,  in  a  critical  sense,  literary  composition  ;  in 
which  knowledge,  taste  and  eloquence,  on  subjects 
of  general  and  literary  interest,  are  so  copiously  dis- 
played, that  the  treasures  which  lie  hidden  in  private 
repositories  doubtless  exceed  in  value  and  impor- 
tance all  that  the  world  has  yet  possessed  in  pub- 
lished epistolary  writing  ?  Yet  it  would  be  extremely 
inaccurate  to  apply  to  such  writings  the  term  literary 
compositions,  in  the  sense  in  which  alone  that  term 
can  have  any  legal  acceptation  ;  for  in  this  sense  it 
must  mean  compositions  written  with  a  view  to  their 
publication  as  literary  works.  If  the  style  or  the 
subject  is  to  be  the  test  of  the  literary  character  of  a 
letter,  in  a  court  of  justice,  a  vast  mass  of  private 
correspondence  would  at  once  fall  under  that  desig- 
nation ;  but  if  this  test  is  to  decide  the  question  of 
protection  from  unauthorized  publication,  a  still 
greater  mass  of  familiar  writing,  that  can  exhibit  no 
atoning  merits  of  style  or  subject  to  console  the  feel- 
ings wounded  by  publication,  must  be  left  out  of  the 
pale  of  human  rights.  Fortunately  for  the  peace  of 
mankind,  the  law  establishes  no  such  distinction.^ 


ing  the  character  of  a  literary  work,  from  which  I  have  already  quoted, 

when  they  were  not  written  for  pub-  thus  sums  up  the  doctrine  in  rela- 

lication?    No  such  test  can  be  ap-  tion  to  letters.    "There  is  no  small 

plied.  confusion  in  the  books,  in  reference 

'  Mr.  Justice   Story,   in   a   case  to  the  question  of  copyright  in  let- 


LETTERS. 


97 


The  question  is  probably  disposed  of  in  this  coun- 
try, by   the  statute  which  gives  a  remedy  against 


ters.     Some  of  the  dicta  seem  to 
suppose,  that  no  copyright  can  ex- 
ist, except  in  letters,  wliich  are  pro- 
fessedly literary  ;  whilst  others  again 
recognize  a  much  more  enlarged  and 
liberal  doctrine.     Without  attempt- 
ing to  reconcile,  or  even  to  comment 
upon  the  language  of  the  authorities 
on  this  head,  I  wish  to  state  what  I 
conceive  to  he  the  true  doctrine  up- 
on the  whole  subject.     In  the  first 
place  I  hold,  that  the  author  of  any 
letter  or  letters,  (and  his  represent- 
atives,) whether   they  are   literary 
compositions,  or  familiar  letters,  or 
letters  of  business,  possess  the  sole 
and  exclusive  copyright  therein  ;  and 
that   no   persons,  neither   those   to 
whom  they  arc  addressed,  nor  other 
persons,  have  any  riglit  or  authority 
to  publish  the  same  upon  their  own 
account,  or  for   their   own    l)enefit. 
But,  consistently  with  this  right,  the 
persons  to  whom  they  are  address- 
ed may  have,  nay,  must  by  implica- 
tion possess  the  right  to  publish  any 
letter  or  letters  addressed  to   them, 
upon  such  occasions,   as  require  or 
justify  the  publication  or  public  use 
of  them  ;  but  tliis  right  is  strictly 
limited  to  such  occasions.     Tints,  a 
person  may  justifiably  use  and  pub- 
lish, in  a  suit  at  law  or  in  equity, 
such  letter  or  letters  as  are  necessa- 
ry and  proper  to  establish  his  right 
to  maintain   the  suit,  or  defend  the 
same.      So,    if  he   be    aspersed  or 
misrepresented  by  the  writer,  or  ac- 
cused of  improper  conduct,  in  a  pub- 
lic   manner,    he   may  puldish  such 
parts  of  such  letter  or  letters,  but  no 
more,  as  may  be  necessary  to  vindi- 
cate his  character  and  reputation,  or 
free   him  from   unjust   oldoquy  and 
reproach.     If  he  attempt  to   publish 
such  letter  or  letters  on  other  occa- 
sions, not  justifiable,  a  court  of  equity 
9 


will  prevent  the  publication  by  an 
injunction,    as   a  Ijreach  of  private 
confidence   or  contract,    or   of    the 
rights  of  the  author  ;  and  a  fortiori, 
if  he   attempt  to  publish  them  for 
profit ;  for  then   it   is   not   a   mere 
breach  of  confidence  or  contract,  but 
it  is  a  violation  of  the  exclusive  co- 
pyright of  the  writer.     In  short,  the 
person  to  whom  letters  are  address- 
ed has  but  a  limited  right,  or  special 
property    (if  I  may  so  call  it,)    in 
such   letters,  as  a  trustee,  or  bailee, 
for  particular  purposes,  either  of  in- 
formation or  of"  protection,  or  of  sup- 
port of  his  own  rights  and  character. 
The  general  property,  and  the  gene- 
ral rights  incident  to  property,  be- 
long   to    the    writer,    whether  the 
letters  are  literary  compositions,  or 
familiar  letters,  or  details  of  facts, 
or  letters  of  business.     The  general 
property  in  the  manuscripts  remains 
in  the  writer  and  his  representatives 
as  well   as   the   general   copyright. 
A  fortiori,  third  persons,  standing  in 
no  privity  with  either  party,  are  not 
entitled  to  publish  them,  to  subserve 
their  own  private  purposes  of  inte- 
rest, or  curiosity,  or  passion.    If  the 
case  of  Perceval  v.  Phipps,  {2  Ves. 
&  Beam.    21,  28,)  before  the  then 
vice-chancellor,   (Sir   Thomas  Plu- 
mer,)  contains  a  dificrcnt  doctrine, 
all  I  can  say  is,   that   I   do  not  ac- 
cede to  its  authority  ;  and  I  fall  back 
upon  the  more  intelligible  and   rea- 
sonable doctrine  of  Lord  Ilardwicke, 
in  Pope  V.  Curll,   (2  Atk.  R.  342.) 
and    Lord   Apsley,   in   the  case  of 
Thompson  v.  Stanhope,    (Amb.  R. 
737,)  and  of  Lord-Keeper  Henley, 
in  the  case  of  the  Duke  of  Queens- 
bury  r.  Shebbeare,  (2  Kden  H.  329; 
4  Burr.  R.  2330,)  which  Lord  Fldon 
has  not  scrupled  to  hold  to  be  bind- 
ing  authorities   upon   the   point  in 


98 


LAW    OF    COPYRIGHT. 


the  unauthorized  publication  of  any  manuscript  what- 


ever. 


The  question  has  been  mooted  in  this  country, 
whether  official  letters,  addressed  to  the  government 
by  public  officers,  can  be  the  subject  of  copyright. 
In  these  cases,  there  seems  to  be  a  right  on  the  part 
of  the  government  to  publish  or  to  withhold  from 
publication,  from  principles  of  public  policy,  accord- 
ing to  the  exigencies  of  the  public  service.  But  this 
exception  in  favor  of  the  government,  which  has  been 


Gee  V.  Pritchard,  (2  Svvanst.  R. 
403,  414,  415,  419,  426,  427.)  But 
1  do  not  understand,  that  Sir  Tho- 
mas Plumer  did,  in  Perceval  v. 
Phipps,  deny  the  right  of  property 
of  tlie  writer  in  liis  own  letters  ;  and 
so  he  was  understood  by  Lord  El- 
don  in  Gee  v.  Pritchard  ;  who,  how- 
ever, said,  that  that  case  admitted  of 
much  remark.  Indeed,  if  the  doc- 
trine were  otherwise,  that  no  per- 
son, or  his  representatives,  could 
have  a  copyright  in  his  own  private 
or  familiar  letters,  written  to  friends 
upon  interesting  political  and  other 
occasions,  or  containing  details  of 
facts  and  occurrences  passing  before 
the  writer,  it  would  operate  as  a 
great  discouragement  upon  the  col- 
lection and  preservation  thereof; 
and  the  materials  of  history  would 
become  far  more  scanty  than  they 
otherwise  would  be.  What  de- 
scendant, or  representative  of  the 
deceased  author,  would  undertake 
to  publish,  at  his  own  risk  and  ex- 
pense, any  such  papers  ;  and  what 
editor  would  be  willing  to  employ 
his  own  learning,  and  judgment, 
and  researches,  in  illustrating  such 
works,  if,  the  moment  they  were 
successful  and   possessed  the  sub- 


stantial patronage  of  the  public,  a 
rival  bookseller  might  republish 
them,  either  in  the  same  or  in  a 
cheaper  form,  and  thus  either  share 
with  him,  or  take  from  him  the 
whole  profits  ?  It  is  the  supposed 
exclusive  copyright  in  such  writings 
which  now  encourages  the  publi- 
cation thereof,  from  time  to  time, 
after  the  author  has  passed  to  the 
grave.  To  this  we  owe  not  merely 
the  publication  of  the  writings  of 
W^ashington,  but  of  Franklin,  and 
Jay,  and  Jefferson  and  Madison,  and 
other  distinguished  statesmen  of  our 
own  country.  It  appears  to  me, 
that  the  copyright  act  of  1831,  (ch. 
16,  ^  y,)  fully  recognizes  the  doc- 
trine for  which  I  contend.  It  gives 
by  implication  to  the  author  or  legal 
proprietor  of  any  manuscript  what- 
ever, the  sole  right  to  print  and  pub- 
lish the  same,  and  expressly  author- 
izes the  courts  of  equity  of  the 
United  States  to  grant  injunctions 
to  restrain  the  publication  thereof, 
by  any  person  or  persons,  without 
his  consent  "  See  also  2  Story's  P]q. 
Jurisp.  (}  U47,  948.  The  sunie  doc- 
trine substantially  is  held  in  France. 
Renouard,  torn.  ii.  p.  294,  295. 
»  Act  of  Cong.  Feb,  3,  1831,  §  9. 


LETTERS. 


99 


thought  to  stand  upon  principles  analogous  to  those 
which  give  a  right  to  private  individuals  to  publish 
the  letters  of  their  agents  upon  fit  and  justifiable 
occasions,  is  not  supposed  to  make  such  letters  com- 
mon property,  to  be  published  by  any  person  who 
may  see  fit,  without  the  sanction  of  the  government, 
nor  to  take  away  the  property  of  the  writers  or  their 
representatives.^ 

But  the  occasion,  on  which  this  doctrine  was  al- 
luded to,  did  not  require  a  direct  adjudication  of  the 
question  whether  the  despatches  of  a  public  officer, 
addressed  to  his  government,  can  be  the  subject  of 


'  Folsom  V.  Marsh,  2  Story's  R. 
100,  113.  In  this  caso  ]\Ir.  Justice 
Story  said,  "In  respect  to  official 
letters  addressed  to  the  government, 
or  any  of  its  departments,  by  pul)lic 
officers,  so  far  as  the  right  of  the 
government  extends,  from  principles 
of  public  policy,  to  withhold  tliem 
from  publication,  or  to  give  them 
publicity,  there  may  be  a  just  ground 
of  distinction.  It  may  bo  doubtful, 
whether  any  public  officer  is  at  lib- 
erty to  publish  them,  at  least  in  the 
same  age,  when  secrecy  may  be  re- 
quired by  the  public  exigencies, 
without  the  sanction  of  the  govern- 
ment. On  the  other  hand,  from  the 
nature  of  the  public  service,  or  the 
character  of  the  documents,  cm- 
bracing  historical,  military,  or  diplo- 
matic information,  it  may  be  the 
right,  and  even  the  duty,  of  the 
government,  to  give  them  puldicity, 
even  against  the  will  of  the  writers. 
But  this  is  an  exception  in  favor  of 
the  government,  and  stands  upon 
principles  allied  to,  or  nearly  sim- 
ilar to,  the  rights  of  private  individ- 
uals, to  whom  letters  are  addressed 


by  their  agents,  to  use  them  and 
publish  them,  upon  fit  and  justifiable 
occasions.  But  assuming  the  light 
of  the  government  to  publish  such 
official  letters  and  papers,  under  its 
own  sanction,  and  for  public  pur- 
poses, I  am  not  prepared  to  admit, 
that  any  private  persons  have  a  right 
to  publish  the  same  letters  and  pa- 
pers, without  the  sanction  of  the 
government,  for  their  own  private 
])rofit  and  advantage.  Recently  the 
Duke  of  Wellington's  despatches 
have  (I  believe)  been  published,  by 
an  able  editor,  with  the  consent  of 
the  noble  duke,  and  under  the  sanc- 
tion of  the  government.  It  would 
be  a  strange  thing  to  say,  that  a 
compilation  involving  so  much  ex- 
pense, and  so  much  labor  to  the  ed- 
itor, in  collecting  and  arranging  the 
materials,  might  be  pirated  and  re- 
published by  another  bookseller,  per- 
haps to  the  ruin  of  the  original  pub- 
lisher and  editor.  Before  mv  mind 
arrives  at  such  a  conclusion,  I  must 
have  clear  and  positive  lights  lo 
guide  my  judgment,  or  to  bind  me 
in  point  of  authority." 


^ 


100  LAW   OF    COPYRIGHT. 

private  copyright.^  In  France,  it  seems  to  be  con- 
sidered that  official  documents  are  not  subjects  of 
the  privilege  of  authors.^ 

III.  Lectures.  The  right  of  property  in  lec- 
tures, oral  and  written,  has  been  recognized  in 
England  by  statute.  The  5  and  6  Wm.  IV.  chap.  65, 
sec.  1,  enacts,  that  from  and  after  the  first  day  of 
September,  1835,  the  author,  or  his  assignee,  of  lec- 
tures to  be  delivered  in  any  school,  seminary,  insti- 
tution, or  other  place,  shall  have  the  sole  right  to 
publish  them  ;  and  the  3d  section  declares  that  no 
person  allowed  for  a  certain  fee  and  reward  or  other- 
wise to  attend  and  be  present  at  any  lecture  de- 
livered at  any  place,  shall  be  deemed  and  taken  to 
be  licensed,  or  to  have  leave  to  print,  copy  and  pub- 
lish such  lectures,  only  because  of  having  leave  to 
attend  them.  But  the  5th  section  provides  that  the 
operation  of  the  act  is  to  be  restricted  to  lectures,  of 
the  delivery  of  which  notice  in  writing  shall  have 
been  given  to  two  justices  living  within  five  miles  of 
the  place  of  delivery,  two  days  before  the  delivery 
thereof.  And  it  is  further  provided,  that  the  act 
shall  not  extend  to  any  lecture  or  lectures  delivered 
in  any  university  or  public  school,  or  college,  or  on 
any  public  foundation,  or  by  any  individual,  in  virtue 

•  The  letters  and  documents  of  an  Ihe  question  concerning  them.     See 

official  character,  published  by  the  de-  2  Story's  R.  114. 
fendants  in  this  case,  were  not  more        ^  See  a  very  able   discussion  of 

than  one-fifth  part  of  the  whole,  and  the  question  in  Renouard,  torn.  2, 

the  court  did  not  expressly  decide  p.  132,  et  seq. 


LECTURES.  101 

of  or  according  to  any  gift,  endowment,  or  founda- 
tion. This  last  provision  is  not  a  liberal  one.  A 
professor  on  a  foundation  has  discharged  his  duty 
when  he  has  delivered  his  lecture  to  his  class.  The 
salary  has  bought  of  him  no  service  beyond  this, 
whether  it  is  paid  by  the  state,  or  is  the  gift  of  an 
individual.  It  certainly  has  not  bought  for  the  pub- 
lic the  substance  of  lectures  which  may  have  cost 
their  proprietor  the  labor  of  a  life.  This  illiberal 
exception  is  unknown  on  the  continent  of  Europe. 
In  most  countries,  this  kind  of  public  discourse  is 
under  the  full  protection  of  the  law.^ 

In  the  United  States,  the  right  of  property  in  lec- 
tures depends  upon  the  general  principles  of  the 
common  lavr,  and  the  statute  which  protects  the 
owner  of  manuscripts.^ 

In  relation  to  a  lecture  purely  oral,  of  which  the 
speaker  has  no  manuscript,  or  any  other  writing 
which  is  such  in  its  nature,  as  that,  coupled  with 
what  is  delivered  orally,  it  may  be  taken  that  he  has 
substantially  a  written  composition,  the  common  law 
has  not  gone  the  length  of  saying  that  he  can,  on  the 
footing  of  property,  have  a  remedy  for  an  unauthor- 
ized publication.  A  written  composition  has  been 
hitherto  held  to  be  the  subject  of  literary  property  ; 
concerning  which  the  court  must  be  satisfied  that  the 
publication  complained  of  is  an  invasion  of  a  written 
work,  and  this  can  only  be  done  by  comparing  the 
composition  with  the  piracy. 

*  Renouard,  torn.  ii.  pp.  144-149.        *  Act  of  Cong.  3d  Feb.  1831,  ^9. 
9* 


102  LAW    OF    COPYRIGHT. 

But  it  does  not  follow  that  because  the  informa- 
tion communicated  by  a  lecturer  is  not  committed  to 
writing,  but  orally  delivered,  it  is  therefore  within 
the  power  of  any  person  who  hears  it  to  publish  it. 
When  persons  are  admitted,  as  pupils  or  otherwise, 
to  hear  public  lectures,  it  is  upon  the  implied  confi- 
dence and  contract  that  they  will  not  use  any  means 
to  injure  or  to  take  away  the  exclusive  right  of  the 
lecturer  in  his  own  lectures.  The  hearer  may  take 
notes  for  purposes  of  his  own  information,  but  he 
may  not  publish  them  for  profit.^ 

Accordingly,  if  a  person  attending  such  lectures 
undertakes  to  publish  them,  or  furnishes  another  per- 
son with  the  means  of  publishing  them,  a  court  of 
equity  will  restrain  such  a  publication,  as  a  violation 
of  trust  and  confidence,  founded  in  contract,  or  im- 
plied from  circumstances.^ 

Where  a  lecture  has  been  reduced  to  writing, 
either  wholly  or  substantially,  the  author  has  a  right 
of  property  in  it  as  a  literary  composition,  in  the 
same  manner  as  in  the  case  of  other  manuscripts. 
The  admission  of  persons  to  hear  such  a  lecture 
affords  no  presumption  that  the  speaker  intends  to 
give  them  a  right  to  publish  the  information  which 
they  may  acquire.  But  when  a  court  of  equity  is 
called  upon  to  restrain  a  publication,  on  the  ground 


'  Abernethy    v.    Hutchinson,    3         ^2  Story's  Eq.  Jurisp.  6  949. 
Law  Journ.    5^09,  219.     2  Story's 
Eq.  Jurisp.  ^949. 


DRAMATIC    COMPOSITIONS.  103 

that  it  is  a  piracy  of  a  composition  in  writing,  the 
writing  must  be  produced.^ 

The  act  of  congress,  3d  February,  1831,  §  9,  gives 
an  action  on  the  case  against  any  person  who  shull 
print  or  publish  any  manuscript  whatever  without 
the  consent  of  the  author  or  proprietor,  and  em- 
powers the  courts  of  the  United  States  to  grant  in- 
junctions according  to  the  principles  of  equity,  to 
restrain  such  publication.  The  remedy  thus  afforded 
would,  without  doubt,  extend  to  the  case  of  any 
lecture,  of  which  the  author  could  produce  notes, 
showing  that  he  had  substantially  reduced  the  same 
to  writins:.^ 

o 

IV.  Dramatic  Compositions,  when  in  manuscript, 
are  protected,  like  other  literary  compositions,  nor 
does  the  author  lose  the  exclusive  right  of  printing 
and  publishing  a  play,  by  allowing  it  to  be  repre- 
sented on  the  stage.^ 

*  Ibid.  "  Love  a  la  Mode,^^  consisting  of 

*  In  France,  the  cour  royale  of  two  acts,  which  was  performed,  by 
Paris  had  before  it,  in  1828,  the  in-  his  permission,  several  times,  at  the 
teresling  question,  wlicther,  when  a  different  theatres,  in  successive 
course  of  oral  lectures  is  merely  the  years,  but  was  never  printed  or  pub- 
reproduction  of  a  work  previously  lished  by  him.  When  the  farce 
published  by  the  professor,  a  person  was  over,  he  used  to  take  the  copy 
who  publishes  the  lectures  from  away  from  the  prompter ;  and  when 
notes  taken  by  a  stenographer,  can  it  was  played  at  the  benefits  of  par- 
be  made  responsible  for  a  piracy  to  ticular  actors,  he  made  them  pay  a 
the  publisher  of  the  work  thus  re-  certain  sum  for  the  performance, 
produced.  The  decision  of  the  The  defendants,  who  were  proprie- 
question  was  given  in  the  athrma-  tors  of  a  magazine,  employed  a 
tive.     See  Renouard,  torn.  2,  p.  MG.  short-hand  writer  to  take  down  the 

^  Macklin  v.  Richardson,  Amb.  words  of  the  play  at  the  theatre, 
695.  The  plaintiff,  in  this  case,  and  thus  published  the  first  act,  piv- 
was  the   author   of  a  farce  called     ing  notice  that  they  would  publish 


104  LAW   OF   COPYRIGHT. 

Whether  the  property  of  an  author  in  a  published 
play  includes,  at  common  law,  the  sole  right  of  re- 
presentation upon  the  stage,  is  a  point  admitting  of 
some  doubt.  In  an  action  brought  for  the  penalty 
under  the  statute  8  Anne,  c.  19,  in  which  the  only 
evidence  of  publication  was  by  representation,  of  the 
play  in  question,  Lord  Kenyon  held  that  the  statute 
only  extends  to  prohibit  the  publication  of  the  book 
itself  by  any  other  than  the  author  or  his  assigns, 
and  that  the  acting  of  a  play  is  not  a  publication/ 
In  a  subsequent  case,  where  Lord  Byron's  tragedy 
of  Marino  Faliero,  altered  and  abridged  for  the  stage, 
was  performed  without  the  consent  of  the  owner  of 
the  copyright,  who  applied  for  an  injunction,  the 
court  of  K.  B.,  on  a  case  sent  by  the  Lord  Chancel- 
lor, certified  it  as  their  opinion  that  an  action  could 
not  be  maintained  "for  publicly  acting  and  repre- 
senting the  said  tragedy,  abridged  in  manner  afore- 
said." - 

The  consequence  of  these  decisions,  in  England, 
was,  that  while  the  authors  of  dramatic  and  musical 
compositions,  after  printing  and  publishing  their 
works,  enjoyed  their  copyrights,  they  had  no  exclu- 
sive privilege  to  the  more  valuable  form  of  repre- 
sentation or  performance.  This  defect  in  the  law 
led  to  the  enactment  of  statutes  giving  this  exclusive 


the  second  act  in  their  next  number.  '  Coleman  u.  Wathen,  5  T.  R. 

Lord     Commissioner     Smythc,    in  215. 

granting   an    injunction,   negatived        *  Murray  v.  EUiston,  5  B.  &  Aid. 

the  idea  that  acting  a  play  is  a  pub-  657. 

lication  of  it. 


BOOKS.  105 

right.  The  3  Wm.  IV.  c.  15,  sec.  1,  gave  to  the  au- 
thor or  his  assignee,  of  any  printed  and  unpublished 
tragedy,  comedy,  play,  opera,  farce,  or  other  dra- 
matic piece  or  entertainment,  the  sole  right  of  hav- 
ing it  represented  in  any  part  of  the  British  domin- 
ions ;  and  to  the  author  or  his  assignee  of  any  such 
dramatic  production  which  was  printed  or  published 
after  the  passing  of  the  act,  or  ten  years  before,  the 
sole  right  of  representation,  from  the  time  of  publi- 
cation, or  of  the  passing  of  the  act,  for  a  period  of 
twenty-eight  years,  or,  if  the  author  were  living  at 
the  end  of  that  time,  for  the  remainder  of  the  au- 
thor's life.^ 

By  the  5  and  6  Vict.  c.  45,  sec.  20,  it  is  enacted 
that  the  sole  liberty  of  representing  or  performing 
or  permitting  to  be  represented  or  performed,  any 
dramatic  piece  or  musical  composition,  shall  endure, 
and  be  the  property  of  the  author  or  his  assignee  for 
the  same  term  as  is  provided  in  the  act  for  the  dura- 
tion of  copyright  in  books.  The  same  section  ex- 
tends the  provisions  in  the  act  respecting  literary 
copyright  and  the  registration  thereof,  to  the  liberty 
of  representing  or  performing  any  dramatic  piece  or 
musical  composition,  except  that  the  first  public  re- 
presentation or  performance  shall  be  deemed  equiv- 
alent to  the  first  publication  of  a  book." 

V.    Books.     The  term  "Book"  is  made  use  of 

'  3  Wm.  IV.  c.  15,  sec.  1.  See  *  5  and  G  Vict.  c.  45,  s.  20.  See 
Appendix.  Appendix. 


106  LAW    OF    COPYRIGHT. 

in  both  the  English  and  American  statutes,  and  the 
question  has  arisen,  whether  its  construction  is  to  be 
confined  to  those  forms  of  publication  only  which  are 
popularly  called  books. 

The  question  first  arose  in  England  at  Nisi  Prius 
upon  a  song  printed  on  a  single  sheet  of  paper, 
which  it  was  contended  could  not  be  within  the  pro- 
tection of  the  act  8  Anne,  c.  19,  which,  in  the  enact- 
ing clause,  mentions  only  "  books."  Lord  Ellen- 
borough  was  inclined  to  think  that  such  a  publica- 
tion was  not  protected  by  the  statute,  as  the  word 
book  only  means  in  common  acceptation  a  plurality 
of  sheets,  and  is  decidedly  used  in  this  sense  in  the 
clause  of  the  statute  which  speaks  of  "  every  sheet 
or  sheets  being  part  of  such  book  or  books."  He 
therefore  nonsuited  the  plaintiff,  but  reserved  the 
point  for  the  opinion  of  the  court.  Erskine,  at  the 
next  term,  moved  and  obtained  a  rule  to  show  cause 
why  the  nonsuit  should  not  be  set  aside  ;  ^  but  when 

'  Mr.  Erskine,  on  this  occasion,  never  occurred  to  the  lord  chancel- 
argued  "that  the  legislature  could  lor  who  directed  the  issue,  or  to 
never  have  meant  to  make  the  oper-  Lord  Mansfield,  or  any  of  the  judges 
ation  of  the  statute  depend  upon  who  decided  the  case,  that  the  form 
the  type  in  which  any  composition  of  the  publication  could  make  any 
is  printed,  or  the  form  in  which  it  difference,  and  therefore  it  is  not 
is  bound  up.  This  song  might  stated.  If  a  different  construction 
easily  have  been  extended  over  sev-  were  put  upon  tlie  act,  many  pro- 
eral  sheets,  and  rendered  a  duodcci-  ductions  of  tlie  greatest  genius,  both 
mo  volume.  In  Bach  v.  Longman,  in  prose  and  verse,  would  be  ex- 
Cowp.  G23,  it  was  decided  that  eluded  from  its  benefits.  But,  might 
music  is  within  the  act,  and  musical  the  papers  of  the  Spectator,  or 
compositions  most  generally  appear  Gray's  Elegy  in  a  Country  Church 
in  this  fugitive  form.  [Lord  Ellen-  Yard,  have  been  pirated  as  soon  as 
borough.  In  the  case  cited,  the  they  were  published,  because  they 
musical  composition  was  a  sonata,  were  first  given  to  the  world  on 
and  a  sonata  maybe  a  book.]     It  single  sheets  ?     The  voluminous  ex- 


HOOKS. 


107 


the  counsel  for  the  defendant  proceeded  to  show 
cause,  the  court  directed  the  matter  to  be  recon- 
sidered by  a  special  verdict,  that  it  might  be  ascer- 
tained whether  the  piece  was  a  book  within  the 
meaning  of  the  legislature.  But  the  cause  was  not 
again  carried  down  for  trial. ^ 

In  a  subsequent  case,  upon  the  same  point.  Lord 
Ellenborough  reconsidered  his  former  opinion,  and 
it  was  settled  unanimously  by  the  court  that  it  could 
not  depend  upon  the  form  of  the  publication,  whether 
it  were  entitled  to  the  privileges  of  the  statute  or 
not ;  that  a  composition  on  a  single  sheet  might  well 
be  a  book  within  the  meaning  of  the  legislature.^ 


tent  of  a  production  cannot,  in  an 
enliglitened  country,  be  the  sole  title 
to  the  guardianship  the  author  re- 
ceives from  the  law.  Every  man 
knows  that  the  mathematical  and 
astronomical  calculations  which  will 
enclose  the  student  during  a  long 
life  in  his  cabinet,  are  frequently  re- 
duced to  the  compass  of  a  few  lines  : 
and  is  all  this  profundity  of  mental 
abstraction,  on  wliich  the  security 
and  happiness  of  the  species  in  every 
part  of  the  globe  depend,  to  be  ex- 
cluded from  the  protection  of  Brit- 
ish jurisprudence?  But  there  is 
nothina  in  the  word  hook  to  require 
that  it  shall  consist  of  several  sheets 
bound  in  leather,  or  stitched  in  a 
marble  cover.  Book  is  evidently 
the  Saxon  hoc,  and  the  latter  term  is 
from  the  beech-tree,  the  rind  of 
which  supplied  the  place  of  paper 
to  our  German  ancestors.  The 
Latin  word  liher  is  of  a  similar  ety- 
mology, meaning  originally  only  the 
bark  of  a  tree.  Book  may  therefore 
be  applied  to  any  wriiing  ;  and  it 
has  often  been  so  vised  in  the  Eng- 


lish language.  Sometimes  the  most 
humble  and  familiar  illustration  is 
the  most  fortunate.  The  horn  hook, 
so  formidable  to  iiiiant  years,  con- 
sists of  one  small  page  protected  by 
an  animal  preparation,  and  in  this 
state  it  has  universally  received  the 
appellation  of  a  book.  So  in  legal 
proceedings,  the  copy  of  the  plead- 
ings after  issue  joined,  whether  it  be 
long  or  short,  is  called  the  paper 
book  or  the  demurrer  book.  In  the 
court  of  exchequer,  a  roll  was  an- 
ciently denominated  a  book,  and  so 
continues  in  some  instances  to  this 
day.  An  oath  as  old  as  the  time  of 
Edward  I.  runs  in  this  form  :  "  And 
you  shall  deliver  into  the  Court  of 
Exchequer  a  book  fairly  written," 
&c.  But  the  book  delivered  into 
court  in  fulfilment  of  this  oath,  has 
always  been  a  roll  of  parchment." 
2  Campb.  28,  29,  note. 

'  Himc  V.  Dale,  2  Campb.  27, 
note. 

*  Clementiv.  Goulding,  2  Campb. 
25,32;  11  East,  244. 


108  LAAV    OF    COPYRIGHT. 

By  the  5  and  6  Vict.  c.  45,  s.  2,  the  word  "  book," 
as  used  in  that  act,  is  to  be  construed  to  mean  and 
include  every  volume,  part,  or  division  of  a  volume, 
pamphlet,  sheet  of  letter  press,  sheet  of  music,  map, 
chart,  or  plan  separately  published.  It  is  said,  how- 
ever, to  have  been  held  in  this  country,  that  a  price- 
current,  published  in  a  semi-weekly  newspaper,  is  not 
a  hook  within  the  act  of  congress,  because  not  a  work 
of  science  or  learning,  but  of  mere  industry.^  This  is 
inconsistent  with  the  previous  decisions,  and  the  rea- 
son given  for  it  is  at  variance  with  all  the  analogous 
principles  on  the  subject.  Works  of  industry  are  as 
much  the  subjects  of  protection  as  works  of  genius. 
Indeed,  there  can  be  no  line  drawn  between  a  pro- 
duction, the  fruit  of  learning,  and  one  the  fruit  of 
mere  industry.  All  learning  is  the  accumulation  of 
knowledge  gathered  by  the  exercise  of  industry .- 

VI.  Music  was  formerly  held  in  England  to  be 
within  the  protection  of  the  act  of  Anne,  it  being  a 
writing  ;  ^    and  now  by  the  statute  of  5  and  6  Vict. 

'  Clayton  V.  Stone,  cited  2  Kent's  writings.      It  is    not    confined    to 

Com.  380,  note,  as  decided  in  the  language   or  letters.     Music  is    a 

circuit  court  of  the  United  States,  at  science  :  it  may  be  written ;  and  the 

New  York,  Dec.  1828.     The  case  mode  of  conveying  ideas  is  by  signs 

is  not  reported.  and  marks.     If  the  narrow  interpre- 

*  1  carmot  but  think  that  the  true  tation  contended  for  in  the  argu- 
reason  was  that  the  publication,  be-  ment  were  to  hold,  it  would  equally 
ing  in  a  newspaper,  had  not  been  apply  to  algebra,  mathematics,  arith- 
duly  entered  according  to  the  act  of  metic,  hieroglyphics.  All  these  are 
congress.  conveyed    by    signs    and    figures. 

*  Bach  V.  Longman,  Cowp.  623.  There  is  no  color  for  saying  that 
In  this  case  Lord  Mansfield  said,  music  is  not  within  the  act."  See 
"The  words  of  the  act  of  parlia-  also  Piatt  v.  Button,  19  Ves.  447. 
mentare  very  large  —  boohs  and  other  Clementi  v.  Walker,2  B.  &  C.  86L 


PERIODICAL    PUBLICATIONS.  109 

c.  45,  s.  2,  the  word  "book,"  in  the  construction  of 
that  act,  is  to  mean  and  include  "  every  volume,  part 
or  division  of  a  volume,  pamphlet,  sheet  of  letter- 
press, sheet  of  music,  map,  chart,  or  plan,  sepa- 
rately published."  ^  Musical  compositions,  intended 
for  the  stage,  fall  under  the  head  of  dramatic  com- 
positions. In  the  United  States,  published  music  is 
included  in  the  "  Act  for  the  encouragement  of 
learning,"  under  the  term  "  musical  composition."^ 
But  we  have  no  statute  in  this  country  to  secure  to 
the  authors  of  musical  compositions  the  sole  right  of 
performance  in  public. 

VII.  Periodical  Publications.  Periodical  pub- 
lications, when  the  requisites  of  the  statutes  have 
been  complied  with,  of  course  fall  under  their  pro- 
tection as  books. ^  There  is  also  a  particular  reme- 
dy, through  the  jurisdiction  of  courts  of  equity,  by 
which  the  property  in  the  good  will  of  a  periodical 
can  be  protected  from  invasion.  Thus  an  injunction 
will  be  granted  against  publishing  as  a  continuation 
or  new  series  of  an  established  periodical,  new  num- 

*  See  Appendix.  the  book  of  registry,  1.   The  title  of 

*  Actof  congress  of  3d  Feb,  1831,     such  encyclopedia  or  periodical.     2. 
sec.  I.  The  time  of  the  first  publication  of 

'  In  the  United  States,  in  order  to  its  first  volume,  numltcr  or  part,  or 

claim  tlie  benefit  of  the   statute,  it  of  the  first  number  or  volume  puh- 

would   be   necessary  to  enter  each  lished  after  the  passing  of  the  act. 

volume  or  number  of  the  work.     In  3.    The  name  and  place  of  abode  of 

B^iHgland,  special    provision   is  now  the  proprietor,   or  of  the  publisher 

made  for  "  encyclopedias,  reviews,  when  the  publisher  is  not  the  provric- 

magazines,     periodical    works,    or  tor.     5  &  6  Vict.  chap.  45,   <j  19. 

other  works  published  in  a  series  of  Newspapers  are   regulated  by  the 

books  or  parts,"   by  giving  the  ben-  act  0  &  7  Wm.  IV.  ch.  7(5. 
efits  of  registration,   on  entering  in 
10 


110  LAW    OF    COPYRIGHT. 

bers,  so  disguised  with  contrivances  as  to  the  cover, 
&c.,  as  to  induce  purchasers  to  take  it  for  the  old 
work  ;'  and  against  assuming  the  name  of  a  newspa- 
per for  the  fraudulent  purpose  of  deceiving  the  pub- 
lic and  supplanting  the  plaintiff  in  the  good-will  of 
his  own  newspaper.^  The  jurisdiction  in  cases  of 
this  kind  is  said,  however,  not  to  be  founded  in  the 
law  of  copyright,  but  on  the  peculiar  powers  of  the 
court  to  restrain  a  defendant  from  carrying  on  a 
trade  or  from  publishing  a  work  under  a  fraudulent 
representation  that  such  trade  or  work  is  that  of  the 
plaintiff/^ 

The  rights  of  the  authors  of  articles  and  essays, 
forming  parts  of  periodical  publications,  have  been 
recently  regulated  by  statute  in  England.  The  act 
5  &  6  Vict.  c.  45,  §  18,  provides  that  when  a  vol- 
ume, part,  essay,  article,  or  portion,  written  for  pub- 
lication in  any  encyclopedia,  review,  magazine,  pe- 
riodical work,  or  work  published  in  a  series  of  books 
or  parts,  or  any  book  whatsoever,  shall  have  been 
composed  for  the  proprietor  of  such  work,  and  paid 
for  by  him,  upon  the  terms  that  the  copyright  theVein 
shall  belong  to  him,  he  shall  enjoy  the  same  rights 
therein  as  if  he  were  the  actual  author,  and  shall 
have  the  same  term  of  copyright  therein  as  is  given 
to  the  authors  of  books  ;  except  that  in  the  case  of 
essays,  articles,  or  portions  forming  part  of  and  first 

'  Hi)gg  V.  Kirby,  8  Yes.  215.  Eden  on  Injunctions  (2d  Am.  edit.) 

«  Bell  V.  Locke,  8  Paige  R.  75.  3.3<J,  3G9,  et  seq.     Curtwell  v.  Lye, 

'  8  Ves.   215,  note  a,   Sumner's  17  Ves.  335. 
ed.     2  Story's  Eq.  Jurisp.  ^  951. 


ENGRA.VINGS,  MAPS  AND  CHARTS.       Ill 

published  in  reviews,  magazines,  or  other  periodical 
works  of  a  like  nature,  after  the  term  of  twenty-eight 
years  from  the  first  publication  thereof  respectively, 
the  right  of  publishing  the  same  in  a  separate  form  is 
to  revert  to  the  author  for  the  remainder  of  the  term 
of  copyright  given  by  the  act  ;  and  during  the  term 
of  twenty-eight  years,  the  proprietor  of  the  work  is 
not  at  liberty  to  publish  any  such  essay,  article,  &-c. 
separately,  without  the  consent  of  the  author  or  his 
assigns  ;  but  authors  who  have  reserved  to  them- 
selves the  right  to  publish  their  articles  in  a  separate 
form,  within  the  twenty-eight  years,  are  to  have  the 
copyright  in  their  compositions  when  published  in  a 
separate  form,  without  prejudice  to  the  right  of  the 
proprietor  of  the  work  in  which  they  originally  ap- 
peared.^ 

VIII.  Engravings,  Maps  and  Charts.  In  the 
United  States,  engravings,  maps  and  charts  are  with- 
in the  protection  of  the  act  of  3d  February,  1831, 
which  gives  the  sole  right  and  liberty  of  printing, 
reprinting,  publishing  and  vending  the  same,  for  a 
period  of  twenty-eight  years,  to  any  person  or  per- 
sons, a  citizen  or  citizens  of  the  United  States,  or 
resident  therein,  his  executors,  administrators,  or 
assigns,  who  shall  invent,  design,  etch,  engrave, 
work,  or  cause  to  be  engraved,  etched,  or  worked 
from  his  own  design,  any  print  or  engraving,  or  who 
shall  be  the  author  or  authors  of  any  map  or  chart. 

'  5  &  6  Vict.  c.  45,  ^18.     See  Appendix. 


112  LAW    OF    COPYRIGHT. 

In  England,  by  the  8  George  II.  c.  13,  the  pro- 
perty in  historical  and  other  prints  was  vested  in 
engravers,  who  took  from  their  own  designs,  for  a 
period  of  fourteen  years.^  By  the  7  George  III.  c.  38, 
§  1,  the  benefit  of  the  former  statute  was  extended 
to  the  prints  of  any  portrait,  conversation,  land- 
scape, or  architecture,  map,  chart,  or  plan,  or  any 
other  prints  whatsoever,  whether  taken  from  the 
artist's  own  original  designs,  or  from  any  picture, 
drawing,  model,  or  sculpture,  either  ancient  or 
modern  ;  and  the  term  of  enjoying  the  right  was  in 
all  cases  enlarged  to  twenty-eight  years.^ 

The  17  George  III.  c.  57,  enabled  the  engravers 
of  prints  to  recover  certain  penalties  for  the  viola- 
tion of  their  right.^ 

These  statutes  did  not  expressly  vest  the  property 
in  prints  in  the  assignees  of  the  artist,  as  well  as  in 
himself.  But  inasmuch  as  the  8  George  II.  c.  13, 
§  2,  enabled  any  purchaser  of  a  plate  from  the  ori- 
ginal proprietors  to  print  and  reprint  from  the  same, 
without  incurring  the  penalties,  and  the  first  section 
of  the  same  act  made  it  necessary,  before  a  print  can 
be  copied,  to  obtain  the  consent  of  the  proprietor,  in 
writing,  signed  in  the  presence  of  two  witnesses  ;  it 
was  held  that  the  assignee  of  a  print  may  maintain 
an  action  against  any  person  who  has  pirated  it.^ 

It  seems  that  the  plates,  which  are  introduced  to 
ornament  or  illustrate  a  book,  are  within  the  protec- 

'  See  Appendix.  ■•  Thompson  v.  Symonds,  5  T.  R. 

2  Ibid.  '  Ibid.  41. 


ENGRAVINGS,'  MAPS  AND  CHARTS.      113 

tion  of  these  statutes.  In  an  action  on  the  case,  for 
pirating  a  book,  and  certain  prints  contained  in  it,  in 
which  the  plaintiff'  declared  separately  for  the  piracy 
of  his  prints  on  the  act  17  George  III.  c.  57,  Lord 
Ellenborough  directed  the  jury  to  find  separate  dam- 
ages for  the  letter-press  and  the  prints.'  It  seems, 
too,  that  a  writer,  treating  the  same  subject  in  ori- 
ginal letter-press,  cannot  copy  and  use  the  plates 
published  by  a  former  writer  in  illustration  of  that 
subject." 

The  property  in  an  engraving  may  consist  in  the 
subject  and  design,  or  in  the  particular  print,  and 
not  in  the  subject  and  design.  It  is  not  very  easy, 
however,  to  define,  in  general  terms,  when  the  pro- 
perty will  be  in  the  design  and  subject,  and  when  in 
the  particular  print  only ;  but  the  distinction  may  be 
illustrated  by  particular  cases.  Thus,  where  the 
subject  and  design  are  purely  the  product  of  the  art- 
ist's imagination,  his  property  will  consist  in  both 
subject  and  design,  and  the  particular  print.  His 
property  in  the  print  itself  would  be  violated  by  a 
copy  or  a  facsimile ;  and  his  property  in  the  subject 
and  design  would  be  violated  by  an  imitation  falling 
short  of  a  facsimile,  but  in  which  the  alterations 
should  be  merely  colorable.^  Thus,  where  the  plain- 
tiff*, in  a  work  on  the  art  of  fencing,  had  introduced 
figures  to  illustrate  the  diff'erent  positions  in  fencing, 

'  Roworth  V.  Wilkes,   1  Campb.  near  to  the  original  as  to  give  every 

94.  person  seeing  it,  the  idea  created  by 

'  Wilkins  V.  Aiken,  17  Yes.  422.  the    original.       Per    Bailey,  J.   in 

^  A  copy  is  that  which  comes  so  West  v.  Francis,  5  B.  &  Aid.  737. 

10* 


114  LAW    OF    COPYRIGHT. 

Lord  Ellenborough  said,  that  the  question  was,  as 
to  the  prints,  whether  the  defendant  had  copied  the 
main  design ;  and  if  there  was  such  a  similitude  and 
conformity  between  the  prints,  that  the  person  who 
executed  the  one  set  must  have  used  the  others  as  a 
model,  he  would  in  that  case  be  a  copyist  of  the 
main  design.^  But  where  the  engraving  is  merely  a 
print  of  a  drawing  taken  from  an  object  in  nature,  or 
a  work  of  art,  which  anybody  is  at  liberty  to  copy, 
the  property  of  the  artist  is  merely  in  his  particular 
print  ;  but  to  this  extent  he  has  a  property,  which 
has  been  held  to  be  clearly  within  the  protection  of 
the  statutes.  Thus,  on  an  application  to  Lord  Hard- 
wickCj  to  restrain  the  defendant  from  copying  and 
publishing  the  plates  of  a  work  on  botany,  his  lord- 
ship said,  "  the  defendant,  to  make  out  the  case  he 
aims  at,  must  show  me  that  these  prints  of  medicinal 
plants  are  in  any  other  book  or  herbal  whatsoever,  in 
the  same  manner  and  form  as  they  are  represented  here, 
for  they  are  represented  in  all  their  several  grada- 
tions—  the  flower  and  the  flower-cup,  the  seed-ves- 
sel, and  the  seed."  ^  So,  where  the  plaintiff",  in  a 
work  on  the  antiquities  of  Greece,  had  published 
prints  taken  from  drawings  made  by  himself.  Lord 
Eldon  granted  an  injunction  against  a  direct  copying, 
applying  the  doctrine  applicable  to  books,  that  any 

'  Ptoworth  V.  Wilkes,  1  Campb.  instance,  an  allegorical  or  fabulous 

94.  representation  ;     nor    to    historical 

*  Blackwell  v.  Harper,  2  Atk.  92.  only,  as  the  dcsij^n  of  a  battle,  &c., 
His  lordship  also  said,  "  I  do  not  but  it  means  the  designing  or  en- 
think  the  act  [8  Geo.  H.  c.  13,]  con-  graving  anything  that  is  already  in 
fines  it  merely  to  invention  ;  as,  for  nature." 


SCULPTURE.  115 

one  was  at  liberty  to  make  new  original  drawings  of 
the  subjects,  but  not  to  copy  the  work  of  another.' 

But  where  a  work  of  art  is  the  subject  of  the  en- 
graving, any  person  has  a  right  to  copy  it,  provided 
he  goes  to  the  original  and  not  to  a  prior  engraving  ; 
nor  can  a  prior  engraver,  by  obtaining  the  permission 
of  the  owner  of  a  picture  to  copy  it,  acquire  any  mo- 
nopoly in  the  subject,  which  will  prevent  a  subse- 
quent engraver  from  copying  from  the  same  picture.^ 

There  can  be  no  property  in  an  engraving  of  an 
obscene,  immoral,  or  libellous  nature.^ 

Maps,  charts,  and  plans  are  included,  under  the 
term  "  book,"  in  all  the  benefits  of  the  act  5  and  6 
Vict.  c.  45.' 

IX.  Sculpture.  In  the  United  States,  the  sole 
right  and  property  of  an  artist  in  original  sculpture, 
is  protected  for  seven  years,  by  a  law  which  requires 
an  entry  to  be  made  at  the  Patent  Office.  This  pro- 
tection extends  to  any  citizen  or  citizens,  alien  or 
aliens,  having  resided  one  year  in  the  United  States, 
and  taken  the  oath  of  his  or  their  intention  to  be- 
come a  citizen  or  citizens.^  In  England,  by  the  54 
George  III.  c.  56,  the  sole  right  and  property  of 
every  new  and  original  sculpture,  model,  copy  or 
cast  of  the  human  figure,  or  of  any  bust,  or  any  part 
of  the  human  figure,  clothed  in  drapery  or  otherwise  ; 

'  Wilkins  v.  Aiken,  17  Ves.  422.  C.   97.     Du  Bost  v.  Beresford,    2 

'  DcBerengcrr.  Wheble,2St;vr-  Carapb.  511.                   *  Sect.  2. 

kie's  N.  P.  C.  548.  »  Act  of  Cong.  Au?.  29,   1842, 

*  Fores  v.  Johncs,  4  Esp.  N.  P.  (^  3.     See  Appendix,  pT  101. 


116  LA.W    OF    COPYRIGHT. 

or  of  any  animal,  or  of  any  part  of  an  animal,  com- 
bined with  the  human  figure  or  otherwise  ;  or  of 
any  subject  being  matter  of  invention  in  sculpture, 
or  of  any  alto  or  basso-relievo  representing  any  of 
the  above-mentioned  matters  ;  or  any  cast  from 
nature  of  the  human  figure,  or  part  of  the  human 
figure,  or  any  subject  containing  or  representing  any 
of  the  above-mentioned  matters  and  things,  whether 
separate  or  combined,  is  vested  in  the  person  who 
shall  make  them  or  cause  them  to  be  made,  for  the 
term  of  fourteen  years  from  the  time  of  first  publica- 
tion ;  provided  that  the  proprietor's  name,  before 
publication,  with  the  date,  be  put  on  such  original 
sculpture,  model,  copy,  or  cast,  &c. 

The  sixth  section  gives  an  additional  term  of  four- 
teen years  to  the  person  who  originally  made  or 
caused  to  be  made  the  sculpture  or  other  matter,  if 
he  be  living  at  the  end  of  the  first  term,  and  have 
not  divested  himself  of  the  copyright  by  sale  or 
otherwise.^ 

X.  Prerogative  Copies'.  The  prerogative  copy- 
rights of  the  crown  of  England  constitute  a  pecu- 
liar branch  of  literary  property,  which  has  given  rise 
to  much  controversy,  and  is  involved  in  some  obscu- 
rity. It  formerly  embraced,  in  practice,  the  Eng- 
lish Translation  of  the  Bible,  the  Book  of  Common 
Prayer,  The  Statutes,  Almanacs,  and  the  Latin 
Grammar,  of  which  the  exclusive  right  of  printing 

'  See  Appendix. 


PREROGATIVE    COPIES.  117 

was  held  to  be  vested  in  the  king,  and  was  accus- 
tomed to  be  granted  by  letters-patent.  We  have 
seen,  in  a  former  chapter  of  this  work,  that  Lord 
Mansfield  considered  this  right  of  the  crown  to  be 
founded  upon  property,  like  the  right  of  a  private 
author  or  his  assigns,  and  consequently  that  he  held 
it  tenable,  in  the  cases  in  which  the  property  of  the 
crown  could  be  traced,  independent  of  reasons  of 
state  or  of  naked  prerogative.^  But  the  subject  is 
attended  with  great  difficulties,  growing  out  of  the 
fact  that  the  right  has  at  various  times  been  exercis- 
ed as  a  naked  prerogative,  and  as  founded  in  reasons 
of  state  policy,  though  it  seems  to  be  clear  that  it 
was  also  sometimes  rested  upon  property.  It  is  not 
my  purpose  to  endeavor  to  decide  the  very  intricate 
questions  arising  under  this  branch  of  the  subject,  but 
simply  to  state  the  doctrines  which  have  prevailed  in 
the  law  of  England,  with  reference  to  the  principal  ob- 
jects to  which  this  right  has  been  supposed  to  attach.- 
1.  The  English  Translation  of  the  Bible.  Sir  Wil- 
liam Blackstone  says,  that  the  claim  of  the  king  to 
the  exclusive  printing  of  the  English  Bible  rests  upon 
the  two  grounds  of  original  purchase,  and  of  his  be- 
ing the  head  of  the  church.^  Lord  Mansfield  held  it 
to  be  a  mere  right  of  property,  the  king  having 
bought  the  translation."*     The  translation  which  the 

'  Millar  v.  Taylor,  4  Burr.  2101.  The  University  of  Cambridge,  1  Bl. 

*  For  a  more  full  discussion  of  105,  113,  Yorke,  solicitor-general, 
the  prerogative  copies,  see  Godson  argued,  that  the  crown  has  no  pre- 
on  Patents,  p.  316,  331.  rogative   at  common  law   over  the 

'  2  Black.  Com.  410.  art  of  printing,  but  is  merely  cnti- 

*  4   Burr.  2105.     In  Baskett  v.     tied    to    some    special    copyrights, 


118  LAW    OF    COPYRIGHT. 

king  was  supposed  to  have  bought,  or  to  have  had 
printed  at  his  own  expense,  was  that  executed  in 
the  reign  and  under  the  superintendence  of  King 
James  I. 

The  notion  of  private  purchase  seems  to  be  now 
abandoned  ; '  but  the  right  itself,  whatever  it  may 
be  founded  on,  seems  to  be  fully  recognized,  although 
it  has  been  the  subject  of  learned  doubts,  on  the 
part  of  respectable  authorities.^  In  the  case  of  an 
application  made  to  Lord  Eldon,  for  an  injunction 
against  the  king's  printer  in  Scotland,  who  had  a  pa- 
tent for  the  sale  of  Bibles,  to  restrain  him  from  print- 
ing or  selling  Bibles  in  England,  the  question  was 
between  rival  patentees.  The  injunction  was  grant- 
ed upon  motion,  and  before  the  hearing,  upon  the 
ground  that  possession,  under  color  of  title,  was 
sufficient  for  an  injunction,  until  it  was  proved  at 
law  that  there  was  no  real  title. ^  Subsequently,  the 
converse  of  this  case  came  before  the  house  of  lords, 
the  question  being  whether  the  king's  printer  in 
Scotland  could  interdict  the  sale  in  Scotland  of  Bi- 
bles imported  from  England.  In  this  case,  the  right 
of  the  crown  to  grant  a  patent  for  the  exclusive 

among   which   he    enumerates   the  p.  107.    Manners?;.  Blair,  3  Bhgh's 

translation    of    the    great    English  R.  (N.  S.)  402, 403. 

Bible  under   Grafton,  performed  at  *   2   Evans's    Statutes,    17,    18, 

the  king's  expense.  Lord  Mansfield,  notes.     Maugham,  107,  and  the  re- 

who  presided,  seems  to  have  taken  marks  of   Lord    Chancellor   Clare, 

the  same  vicvi'  of  the  king's  right,  there  cited.     Lord  Giflbrd's  obser- 

then,  and  in  the  subsequent  case  of  vations,    in    Manners   v.    Blair,    3 

Miliars.  Taylor,  where  he  expressly  Bligh's  R.  (N.  S.)  394,  398. 

asserts  the  king's  right  by  purchase.  ^  Universities  of  Oxford  and  Cam- 

*  Maugham  on  Literary  Property,  bridge  v.  Richardson,  6  Ves.  689. 


PREROGATIVE    COPIES. 


119 


printing  of  Bibles  was  elaborately  discussed  by  Lord 
Chancellor  Lyndluirst,  in  moving  the  judgment  of 
their  lordships.  He  defined  the  nature  of  the  right, 
as  flowing  from  the  duty  imposed  upon  the  chief  ex- 
ecutive officer  of  the  government,  to  superintend  the 
publication  of  acts  of  state,  and  of  the  works  upon 
which  the  established  doctrines  of  religion  are  found- 
ed—  a  duty  imposed  upon  the  king,  and  carrying 
with  it  a  corresponding  prerogative.^ 


*  Manners  v.  Blair,  3  Bligh's  R. 
(N.  S.)  391,  102.  In  this  case,  the 
lord  chancellor  said,  "The  princi- 
pal respondents  in  this  case  are  the 
kinq-'s  printers  in  Scotland.  They 
hold  that  office  under  a  patent  from 
the  crown.  Tlie  appellants  are 
members  of  certain  Bible  societies 
in  Scotland,  and  have  been  in  the 
habit  of  importing  Bibles  from 
England  ;  and  the  material  question 
to  be  decided  in  this  case,  is  wht^ther 
or  not  the  king's  printers  in  Scot- 
land have,  by  virtue  of  tlioir  office 
and  their  patent,  a  right  to  exclude 
persons  from  importing  Bibles,  and 
the  other  worUs  which  arc  contained 
in  tlip  patent  from  England  1 

"Two  important  cpiestions  were 
raised  in  tliiscasc.  One,  which  was 
raised,  and  which  was  aryued  at 
great  length  in  the  court  below,  and 
argued  very  ably  at  your  lordships' 
bar,  was  as  to  the  right  of  the  crown 
to  grant  a  patent,  the  effijct  of  which 
shall  be,  to  prevent  persons  in  Scot- 
land from  importinur  Bibles,  and 
other  works  of  the  description  men- 
tioned in  the  patent,  certain  religious 
works,  from  England;  and  the  se- 
cond question  turned  ujjon  the  par- 
ticular construction  of  the  terms  of 
this  patent. 

"  Willi  respect  to  the  first  question, 


it  arose  out  of  the  case  of  Manners 
and  Miller  v.  Blair,  which  was  be- 
fore your  lordships'  house  two  or 
three  sessions  ago.  When  that  case 
came  on  for  arffument,  and  was  ar- 
gued at  your  lordships'  bar,  it  oc- 
curred to  the  learned  lord  who  then 
presided  here  (Lord  Tiiffiird),  that 
there  was  a  doubt  as  to  the  validity 
of  the  patent,  and  as  to  the  power 
of  the  kins  to  grant  a  patent  of  that 
description.  I  do  not  mean  to  sug- 
gest that  the  noble  and  learned  lord 
expressed  any  opinion  upon  that 
subject,  but  that  he  was  desirous, 
before  he  decided  that  question,  that 
that  point  should  be  argued  at  your 
lordships'  bar;  but  which  was  in 
fact,  never  argued  in  the  particu- 
lar case,  because  the  case  in  which 
I  am  about  to  propose  that  your  lord- 
ships should  give  judgment,  was  be- 
fore the  courts  below ;  and  being 
before  the  courts  below,  the  point 
was  raised  before  the  judges  of  the 
court  in  Scotland,  which  iiad  not  in 
fact  been  raised  in  the  case  of  Man- 
ners and  Miller  v.  Blair ;  and  that 
case  having  come  before  your  lord- 
ships upon  appeal,  it  was  considered 
more  convenient  and  proper  that  the 
argument,  with  respect  to  the  va- 
lidity of  the  patent,  and  with  res]>ect 
to   the    prerogative   of   the   crown, 


120 


LAW    OF    COPYRIGHT. 


The  effect  of  these  decisions  is,  that  so  long  as 
there  are  separate  subsisting  patents  for  England 


should  be  on  that  particular  case, 
than  on  the  case  of  Manners  and 
Miller  ;  but  your  lordships'  decision 
in  the  one  case,  will  be  of  course 
governed  by  the  decision  in  the 
other. 

"  In  conducting  the  argument, 
with  respect  to  the  prerogative  of  the 
crown,  reference  was  made,  and 
very  properly  made,  to  the  cases  of 
prerogative  in  England.  For  two 
hundred  years  and  more,  the  kings 
have,  in  England,  granted  patents 
to  their  printers  here,  as  extensive 
as  the  patent  we  are  now  consider- 
ing, and  perhaps  more  extensive, 
but  extensive  enough  to  raise  the 
question  we  are  now  considering. 
In  England,  the  power  of  the  king 
to  grant  patents  of  this  description, 
or  to  appoint  to  such  an  office,  has 
never  been  seriously  questioned. 
Those  patents  have  from  time  to 
time  come  under  the  review  of  our 
courts,  and  the  judges  have  been 
called  upon  to  decide  upon  them. 
One  case  occurred  before  Sir  Joseph 
Jekyll,  so  far  back  as  the  year  1720, 
and  others  at  different  periods,  both 
in  the  courts  of  equity,  and  also  be- 
fore this  house  during  the  last  cen- 
tury ;  and  I  would  stale  it  as  a  point 
not  admitting  now  of  doubt  or  con- 
troversy, that  as  far  as  relates  to  the 
office  of  king's  printer  in  England, 
the  crown  has  tlie  prerogative  to 
grant  a  patent  as  extensive  as  that 
we  are  now  considerintr,  —  assum- 
ing, for  the  purpose  of  argument, 
that  the  patent  is  as  extensive  as  it 
is  contended  on  the  part  of  the  re- 
spondents to  be. 

"  But  although  the  power  of  the 
king  and  his  prerogative  in  Kngland 
has  never  t)cen  questioned,  it  has 
been  rested  by  judges  on  different 
principles.     Some  judges  have  been 


of  opinion,  that  it  is  to  be  founded 
on  the  circumstance  of  the  transla- 
tion of  the  Bible  having  been  actu- 
ally paid  for  by  King  James,  and  its 
having  become  the  property  of  the 
crown,  and  therefore  it  has  been  re- 
ferred to  a  species  of  copyright. 
Other  judges  have  referred  it  to  the 
circumstance  of  the  king  of  England 
being  the  supreme  head  of  the 
church  of  England,  and  that  he  is 
vested  with  the  prerogative  with 
reference  to  that  character.  Other 
judges  have  been  of  opinion,  and  I 
confess,  for  my  own  part,  I  am  dis- 
posed to  accede  to  that  opinion,  that 
it  is  to  be  referred  to  another  con- 
sideration, namely,  to  the  character 
of  the  duty  imposed  upon  the  chief 
executive  officer  of  the  government, 
to  superintend  the  publication  of  the 
acts  of  the  legislature,  and  acts  of 
stale  of  that  description,  and  also  of 
those  works,  upon  which  the  estab- 
lished doctrines  of  our  religion  are 
founded,  —  that  it  is  a  duty  imposed 
upon  the  first  executive  magistrate, 
carrying  with  it  a  corresponding 
prerogative.  That  was  the  opinion 
of  Lord  Camden,  as  expressed  in 
the  case  of  Donaldson  v.  Becket, 
(4  Burr.  2108.)  in  most  direct  and 
eloquent  terms  in  this  house  :  that 
was  the  opinion  also  expressed  by 
Chief  Baron  Skinner,  in  the  case 
of  Eyre  and  Strahan  v.  Carnan ; 
(Court  of  Excheq.  1781.)  and  I 
think  that  may  be  collected  or  in- 
ferred to  be  the  opinion  of  a  learned 
and  noble  earl,  now  a  member  of 
your  lordships'  house,  from  what 
fell  from  that  noble  and  learned  lord, 
in  the  case  of  the  Universities  of 
Oxford  and  Cambridge  v.  Richard- 
son.    (6  Ves.  704,  5.) 

"  If  that  be  so,  if  that  is  the  true 
principle  upon  which  this  preroga- 


PREROGATIVE    COPIES. 


121 


and  Scotland,  for   the   printing  of  Bibles,  no  other 
copies   can  be  sold  in  either  country  except   those 


live  is  to  be  rested,  it  appears  to  me 
that  all  diiliculty  ceases  with  respect 
to  the  preroi^fative  in  .Scotland.  In 
Sc<)tlan<i,  as  well  as  Eiislaiid,  pa- 
tents of  this  description  have  been 
granted  without  dispute  or  contest, 
for  more  than  two  hundred  years. 
These  patents  have  at  dilFerent  pe- 
riods been  made  the  subject  of  suits 
in  the  courts  of  Scotland,  and  par- 
ticularly in  the  case  of  Watson  v. 
Basket!,  in  the  year  171G,  or  the 
year  1717,  which  cases  came  after- 
wards by  appeal  to  the  house  of 
lords.  In  another  case,  that  of  the 
King's  Printers  v.  Bell  and  Brad- 
fute,  this  patent  came  under  the 
consideration  of  the  courts  of  justice 
in  Scotland  :  and  many  other  cases 
may  be  referred  to,  for  the  purpose 
of  establishing  the  same  fact  :  so 
that  we  have  in  Scotland,  as  well  as 
England,  patents  granted  succes- 
sively for  a  period  of  more  than  two 
hundred  years.  These  patents  have 
been  the  subjects  of  suits.  These 
cases  have  come  to  your  lordships' 
house ;  and  I  do  not  think,  that 
until  the  doubt  was  thrown  out  by 
the  noble  and  learned  lord  to  whom 
I  have  referred,  the  late  Lord 
Gifford,  the  prerogative  of  the  crown 
of  Scotland  was  ever  called  in  ques- 
tion. Certainly  it  never  did  occur 
to  the  very  able  counsel  who  argued 
the  case  of  Manners  and  Miller  v. 
Blair,  in  the  court  below,  seriously 
to  consider  or  to  contest  that  point. 

"  In  the  course  of  this  arsrument  it 
w;is  assumed,  as  the  basis  of  a  part 
of  an  argument,  that  the  prerooative 
in  England  depended  upon  the  king's 
character  as  supreme  head  of  the 
church  ;  and  it  was  arofued.  that  that 
principle  did  not  apply  to  Scuthind, 
for  that  although  the  kin<,'  was  the 
supreme  head  of  the  church  in 
England,  he  was  not  the  supreme 
II 


head  of  the  church  in  Scotland ; 
and  therefore  the  prerogative  might 
well  e.xist  m  this  part  of  the 
island,  and  yet  not  exist  in  Scot- 
land. But,  I  have  already  stated, 
that  I  do  not  refer  the  preroga- 
tive to  the  circumstance  of  the 
king  being,  in  a  spiritual  or  ecclesi- 
astical sense,  the  supreme  head  of 
the  church  in  England,  but  to  the 
kinply  character  —  to  his  being  at 
the  head  of  the  church  and  state, 
and  it  being  his  duty  to  act  as 
guardian  and  protector  of  both, — 
a  character  which  he  has  equally  in 
Scotland  and  England.  It  is  per- 
fectly clear,  that  it  is  the  duty  of  the 
king  to  act  thisp;irt,  as  the  guardian 
of  the  church  in  Scotland.  That  is 
a  principle  laid  down  by  the  author- 
ities in  Scotland  as  much  as  in 
England.  By  the  authority  of  the 
statute  by  which  the  Pieformation 
was  established  in  Scotland,  it  is 
declared  to  be  the  duty  of  the  ma- 
gistrates, and  the  king  as  supreme 
magistrate,  to  be  the  protector  of 
the  church;  and  in  the  act  of  1G90, 
by  which  the  Presbyterian  church 
was  established,  when  the  Episca- 
palian  church  authority  was  finally 
])ut  an  end  to  in  Scotland,  the  same 
principle  is  laid  down  and  acknowl- 
edo^ed.  I  think,  therefore,  that  this 
right  and  prerogative  depends  upon 
the  king's  character  as  guardian  of 
the  church  and  guardian  of  the 
stale,  to  take  care  that  works  of  this 
description  are  published  in  a  cor- 
rect and  authentic  form  ;  and  that 
those  arguments  upon  which  the  au- 
thority rests  in  this  country  apply 
also  in  Scotland. 

"  But  it  was  said  at  the  bar.  that 
in  England,  as  far  as  relates  to  the 
translation  of  the  Holy  Bilde,  we 
have  the  translation  recognized  by 
public  authority,  introduced  into  the 


122 


LAW    OF    COPYRIGHT. 


printed  by  the  patentee  in  that  country  ;   and  so  long 
as  there  is  a  subsisting  patent  for  either  country,  no 


service  of  ilie  church  by  public  au- 
thority ;  and  that  the  prcroifative  in 
Enaland  will  properly  apply  to  this 
translation,  but  that  the  same  prin- 
ciple docs  not  a]iply  in  Scotland. 

"  With  respect  to  the  Bible 
which  was  translated  in  the  reig-n 
of  James  I.,  and  which  indisputably 
was  translated  under  his  sanction, 
and  by  virtue  of  his  autliori'y,  it 
does  not  appear  that  he  contributed 
anything  towards  the  expense.  It 
does  not  appear  that  that  translation 
of  the  Bible  was  introduced  into  the 
church  by  the  authority  of  any  act 
of  parliament,  by  the  authority  of 
any  act  of  convocation,  or  by  pro- 
clamation ;  but  undoubtedly  it  was 
introduced  under  the  sanction  and 
authority  of  the  head  of  the  church, 
under  the  sanction  of  the  king  of 
that  period,  —  in  what  precise  way 
does  not  appear  by  evidence.  It  is 
probable,  tliat  after  it  was  completed, 
and  the  heads  of  the  church  were 
sitisfied  with  it,  it  was  by  the  au- 
thority of  the  bishops,  in  their  re- 
spective dioceses,  introduced  into 
general  use  throughout  the  king- 
dom, possibly  without  any  further 
act  for  that  purpose.  But  is  there 
any  essential  difference  between  the 
situation  of  England  and  Scotland 
in  this  respect'?  I  apprehend  clearly 
none  ;  because  the  same  translation 
has,  if  not  by  the  actual  authority, 
at  least  by  the  sanction  of  the  gen- 
eral assembly  of  Scotland,  been  in- 
troduced into  their  church,  and  used 
there  for  a  period  I  believe  of  one 
hundred  and  fifty  years ;  and  I  un- 
derstand that  use  of  it  in  Scotland 
is  as  general,  and  indeed  as  exclu- 
jsive  and  universal  as  in  England. 
This  translation,  therefore,  has  been 
sanctioned  in  the  country  by  the 
church  of  that  country,  and  by  the 


proper  ecclesiastical  authorities  ;  and 
I  apprehend  that  it  stands  in  the 
same  situation,  and  is  guarded  by 
the  same  privileges,  and  is  in  point 
of  law,  unless  the  general  assembly 
should  order  otherwise,  as  compel- 
lable to  be  used  in  the  churches  of 
Scotland  as  it  is  in  the  churches  of 
England.  I  do  not  apprehend, 
therelbre,  that  there  is  any  difficulty 
in  th  s  respect,  or  that  any  argu- 
ment whatever  can  be  founded  on 
the  idea,  that  by  some  authority  in 
this  country  that  particular  transla- 
tion has  been  introduced  into  uni- 
versal use  in  our  church,  and  that 
no  corresponding  authority  exists  in 
Scotland.  I  have  no  doubt  there  is 
some  authority,  at  least  some  im- 
plied authority,  for  the  introduction 
of  it  in  England ;  and  I  apprehend 
there  is  the  same  implied  authority, 
the  same  sanction  for  it  by  ecclesi- 
astical authorities  in  Scotland. 

"  It  was  in  consequence  of  this  cir- 
cumstance, and  some  doubts  arising 
out  of  this  particular  view  of  the 
case,  that  the  noble  and  learned  lord 
to  whom  I  have  referred,  was  de- 
sirous that  in  this  particular  view, 
it  should  be  considered  again. 

"  It  appears  to  me,  that  as  far  as 
relates  to  the  tran.slation  of  the  Ploly 
Scriptures,  the  case  with  respect  to 
Scotland  is  precisely  the  same  as  it 
is  with  respect  to  lOngland.  But  in 
this  patent  there  are  other  works 
noticed.  There  is  the  Confession  of 
Faith.  I  find  that  the  Confession  of 
P'aith  was  ratified  by  the  general 
assembly,  in  ihe  year  1649;  it  is 
therefore  a  book  adopted  by  the 
proper  ecclesiastical  authority  in  the 
country.  Thelargerand  theshorter 
Catechisms  were  also  ratified  by  the 
general  assembly  about  that  same 
period  :  and  with  respect  to  the  me- 


PREROGATIVE    COPIES. 


123 


Other  copies  can  be  sold  except  those  printed  by  the 
patentee  or  patentees. 

2.  The  Book  of  Common  Prayer.  The  doctrine 
with  reference  to  the  publication  of  the  Liturgy  ot 
the  Church  of  England,  is  that  the  king,  as  chief  ex- 
ecutive magistrate  and  head  of  the   church,  has   a 


trical  version  of  the  Psalms,  wliicli 
is  also  coiiiriiiied  in  that  patent,  that 
was,  as  I  am  infurmcd,  prepared  by 
the  autliority  of  the  general  assem- 
bly, and  it  is  used  in  the  churches 
by  authoiity  of  that  general  assem- 
bly. It  appears  to  me,  therefore, 
that  these  works  come  within  the 
same  principle  as  the  Holy  ISciip- 
tures,  and  within  the  same  principle 
as  the  Book  of  Common  Prayer  in 
this  country. 

"  A  question  has  been  raised  with 
respect  to  the  Hook  of  Common 
Prayer,  which  is  also  contained  in 
this  patent ;  and  it  is  said,  that  at  all 
events,  the  king  could  not  in  Scot- 
land confer  the  exclusive  right  of 
printing  this  work  on  his  printer  in 
Scotland.  The  court  below  enter- 
tained some  doubt  upon  this  point, 
and  in  this  particular  stage  of  the 
cause,  tliey  have  excepted  the  Com- 
mon Prayer  from  the  operation  of 
their  interdict,  without,  iiovvever, 
pronouncins  any  decision  upon  it. 
At  one  period  ei»iscopacy  existed  in 
Scotland.  During  that  time,  there 
is  no  doubt  the  king's  authoiity 
applied  to  the  Book  of  Common 
Prayer,  as  well  as  to  the  other 
works  to  which  I  have  referred.  It 
is  true,  that  by  the  act  of  parlia- 
ment passed  in  the  year  lOliO,  an 
alteration  was  made  in  this  respect. 
By  the  elTect  of  that  act  of  parlia- 
ment in  Ki'JO,  the  presbyterian  form 
of  worship  became  the  established 
form  in  Scotland,  and  the  church  of 


that  persuasion  became  the  estab- 
lished church  of  Scotland  :  but,  those 
persons  who  were  members  ol  the 
church  of  England,  who  were  in  her 
communion,  were  still  entitled  to 
the  protection  of  the  crown  ;  there 
was  nothing  in  tliat  act  of  parlia- 
ment to  deprive  them  of  that  pro- 
tection ;  and  if  the  king  possessed 
the  prerogative  previous  to  the  pass- 
ing of  the  act  in  lOiJO,  l)y  which 
he  had  the  exclusive  right,  by 
himself  or  his  ollicevs,  in  Scutlunrt, 
to  publish  the  Book  of  Common 
Prayer,  there  is  nothing  in  tlie  act 
of  lOiJO  to  deprive  him  of  that  pre- 
rogative, which  he  had  previously 
enjoyed. 

"  It  does  not  appear  to  me,  there- 
fore, in  this  view  of  the  case,  tiiat 
there  is  any  essential  diU'erence  be- 
tween that  part  of  the  jiatent  which 
relates  to  the  Book  of  Common 
Prayer,  and  that  which  relates  to 
the  other  works.  1  think,  therefore, 
that  with  respect  to  this  question, 
which  was  not  originally  mooted  in 
the  court  below,  namely,  the  <jcn- 
eral  question  of  the  validity  of  the 
patent,  which  was  only  afterwards 
argued  in  the  second  case,  in  con- 
sequence of  the  wish  intimated  by 
the  noble  and  learned  lord  to  whom 
1  have  adverted,  that  your  lord;<hii'S 
will  have  no  difliculty  in  coming  to 
the  opinion,  that  in  Scotland,  as  in 
England,  the  king  possesses  this 
prerogative,  and  that  he  has  a  right 
to  confer  it  upon  his  printer." 


124  LAW    OF    COPYRIGHT. 

right  to  the  exclusive  publication  of  the  books  of  di- 
vine service.  In  1781,  a  bill  was  filed  in  the  ex- 
chequer, to  restrain  the  defendant  from  printing  and 
publishing  a  form  of  prayer,  which  had  been  ordered 
by  his  majesty  to  be  read  in  all  churches.  Lord  Ch. 
Baron  Skinner,  who  delivered  the  judgment  of  the 
court,  declared  that  whatever  the  origin  of  this  right, 
this  was  certain,  that  it  has  ever  been  a  trust  reposed 
in  the  king,  as  executive  magistrate,  and  the  supreme 
head  of  the  church,  to  promulgate  to  the  people  all 
those  civil  and  religious  ordinances  which  were  to  be 
the  rule  of  their  civil  and  religious  obedience.^  It 
appears  that  down  to  the  34th  year  of  Henry  VIII. 
the  mass  book  and  other  books  of  divine  service  had 
not  been  printed  in  England,  but  had  been  brought 
from  other  countries,  probably  from  Rome.  In  that 
year,  however,  a  patent  was  granted  for  the  sole 
printing  of  such  books  ;  but  no  other  instance  of 
the  superintending  care  of  the  crown  in  printing 
books  of  divine  service,  occurs,  until  the  first  year 
of  Queen  Elizabeth,  when  the  exclusive  right  of 
printing  books  of  divine  service  was  inserted  in  the 

'  Eyre  v.   Strahan  and  Carnan,  Erskine's   Speeches,  vol.   I.      Sir 

reported  5  Bacon's  Abridg.  Prerog-  W.  D.   Evans  argues  very  strenu- 

ative,  F.  p.  597.     Mr.  Krskine,   in  ously  against  the   existence  of  the 

his  speech  at  the  bar  of  the  house  legal  rigbt,  and  thinks  that  it  could 

of  commons,  in   1788,  against   the  not  now  be  agitated,  as  between  the 

monopoly    of    almanacs,    admitted  public    and   a   patentee,   with    any 

tiiat  the  king  bad  the  exclusive  right  prospect  of  success     2  Evans's  Stat, 

to  publish  religious  and  civil  consti-  pp.  15,  16,  17,  notes.     But  the  de- 

lutions  ;  "  in  a  word,  to  promulgate  cision    of  the    house   of    lords,    in 

every  ordinance  which  contains  the  Manners  v.  Blair,   solemnly  affirms 

rules  of  action  by  which  the  subject  the  right,  although  the  question  was 

is    to   live   and   to   be   governed."  between  rival  patentees. 


PREROGATIVE    COPIES.  125 

same  patent  with  the  right  of  printing  the  acts  of 
parliament,  which  had  been  granted  some  time  be- 
fore, and  from  that  time  they  had  been  regularly 
granted  together,  to  the  time  of  this  decision.^ 
The  recognition  of  the  whole  doctrine  of  prerogative 
copies  by  the  house  of  lords,  in  1828,  shows  that  as 
to  books  of  divine  service,  it  remains  the  samc.- 

3.  The  Statutes.  The  exclusive  right  of  printing 
acts  of  parliament  has  been  regarded  more  favorably 
than  the  other  branches  of  prerogative  copyright. 
The  reasons  that  have  been  given  for  it  are,  that  it 
is  necessary  that  there  should  be  a  responsibility  for 
correct  printing,  and  because  copy  can  only  be  had 
from  the  rolls  of  parliament,  which  are  within  the 
authority  of  the  crown. ^  Anciently,  the  king's  offi- 
cers transmitted  copies  of  the  ordinances  of  the  state 
to  the  sheriffs,  who  caused  them  to  be  publicly  read 
in  their  county  courts.  When  the  demand  for  au- 
thentic copies  began  to  increase,  and  the  introduc- 
tion of  printing  facilitated  the  multiplication  of 
copies,  the  people  were  supplied,  by  the  king's 
command,  by  his  patentee.  This,  it  is  said,  seemed 
a  very  obvious  and  reasonable  extent  of  that  duty 
which  lay  upon  the  crown  to  furnish  the  people  with 
the  authentic  text  of  their  ordinances.'  In  this  prac- 
tice, the  claim  of  right  originated,  and  it  was  cer- 
tainly recognized   in   repeated   decisions   from    the 

•  Ibid.  Jackson,  cited  i\I:iugham,  p.  104,  as 

'  Manners  v.  Blair,  3  Bligh's  R.  reported  in  Ridffway's  R.  304. 

(N.  S.)  394.  *  Per  Lord  Oh.  B.  Skinner,   ut 

'  Per  Lord  Clare,  in  Grierson  v.  supra. 
11* 


126  LAW    OF    COPYRIGHT. 

18  Chas.  II.  to  the  year  1781.^  But  some  of  these 
cases  went  the  length  of  asserting  the  sole  right  of 
the  crown  to  print  the  other  law  books,  such  as  the 
Reports,  the  Year  Books,  and  Rolle's  Abridgment, 
and  this  right  was  contended  for  on  grounds  of  pro- 
perty.^ These  notions  are  now  of  course  exploded, 
and  the  right  of  the  patentees  of  the  crown  to  the 
sole  printing  of  the  statutes,  as  now  recognized  in 
England,  must  depend  upon  usage  and  the  force  of  a 
decision  of  the  court  of  king's  bench,  made  in  1758, 
and  upon  the  recognition  of  the  doctrine  of  preroga- 
tive copies  by  the  house  of  lords  in  1828.  The  for- 
mer was  a  case  stated  by  order  of  the  court  of 
chancery,  between  the  king's  printer  and  the  uni- 
versity of  Cambridge,  both  claiming  under  grants 
from  the  crown.  The  court  certified  it  as  their  opin- 
ion, that  the  plaintiffs  were  entitled  to  the  right  of 
printing  acts  of  parliament,  and  abridgments  of  acts 
of  parliament,  exclusive  of  all  other  persons,  not 
authorized  to  print  the  same  by  prior  grants  from 
the  crown  ;  but  that  the  university  of  Cambridge  is 
intrusted  with  a  concurrent  authority  to  print  acts  of 
parliament  and  abridgments  of  acts  of  parliament, 
within  the  university,  upon  the  terms  of  their  pa- 


'  Atkyns's  Case,  Carter  89.    Ba-  R.   105.     Baskett  v.  Cunningham, 

con's  Ab.  Prerogative,  F.     4  Burr.  lb.  370. 

2315.    Pvoperi;.  Streater,  Skin.  234.  '^  Atkyns's  Case,  Carter  89.    Re- 
Stationers'  Co.  V.  Parker,  Skin.  233.  per  v.  Slreater,  Skin.  234.    Station- 
Eyre  v.  Strahan  &  Carnan,  Bac.  Ab.  ers'  Co.  u.  Parker,  lb.  233.      Vide 
Prerog.  F.  p.  597.    Baskett  v.  Uni-  ante  chap.  1,  p.  40-44. 
versity  of  Cambridge,   1  W.  Black. 


PREROGATIVE    COPIES. 


127 


tents. ^  This  case  is  open  to  the  same  remark  that 
has  been  made  upon  Oxford  v.  Richardson,  that  it 
does  not  present  the  question  of  the  validity  of  these 
patents,  as  between  the  crown  and  the  public,  for 
direct  decision.  It  does,  however,  assume  the  ex- 
clusive right  to  be  in  the  king,  and  it  will  require 
solemn  argument  and  great  deliberation,  to  set  it 
aside.  It  w^as  subsequently  followed  in  the  court  of 
chancery,-  and  to  this  day  constitutes  the  principal 
authority  upon  which  applications  for  relief  in  that 
court  have  been  rested.  The  case  in  the  house  of 
lords  has  been  already  cited. ^ 

It  seems  to  be  agreed,  that  the  privileged  copies, 
both  the  Bible  and  the  Statutes,  may  be  printed  by 
others  than  those  having  the  patent  right,  if  accom- 


'  Baskett  V.  The  University  of 
Cambridge,  1  W.  Black.  R.  105, 
121.   (1758.) 

*  Baskett  v.  Cunningham  &  others, 
1  Black.  R.  370,  (1762.)  The  de- 
fendant, in  conjunction  with  several 
booksellers,  wns  publishing  in  week- 
ly numbers,  A  Digest  of  the  Statute 
Law,  containing  the  Statutes  at 
large,  with  notes  from  Lord  Coke 
and  other  writers  of  the  law.  He 
had  contracted  with  Strahan  and 
Woodfall,  the  proprutora  of  the  pa- 
tent for  printing  law  boohs _  to  print 
this  work,  and  it  was  printed  at 
their  press.  Baskett,  the  king's 
printer,  (whose  patent  extended  to 
Statutes)  filed  his  bill  apainst  the 
proprietors  and  the  law  printers,  for 
an  injunction.  The  Lord  ('chancel- 
lor was  of  opinion  that  the  work 
was  entirely  within  the  patent  of  the 
king's  printer,  and  tiiat  the  notes 
were  merely  collusive.  ]3ut  he 
would  not  interfere  between  the  two 


contending  patents,  in  the  summary 
method  of  injunction  ;  but  left  them 
to  adjust  their  respective  rights,  at 
law.  He  therefore  ordered  an  in- 
junction to  issue,  to  restrain  the  pro- 
prietors from  printing  at  any  other 
than  a  patent  press  ;  which,  as 
Woodfall  and  Strahan  were  secretly 
in  league  with  Baskett,  and  were  at 
that  time  jointly  concerned  in  a  new 
edition  of  the  Statutes,  was  equiva- 
lent to  a  total  injunction.  —  In  1804, 
a  bill  filed  by  the  king's  printer  in 
Ireland,  to  establish  his  right  to 
print  and  distril)ute  the  copies  of  the 
statutes  for  Ireland,  and  for  an  ac- 
count against  the  king's  printer  for 
England,  was  dismissed,  uj)oii  the 
ground  that  the  plaintifi'  had  no 
equity  which  the  court  could  ad- 
minister. Grierson  v.  Eyre,  9  Ves. 
311. 

^  Manners  i'.  Blair,  see  ante,  p. 
119-123. 


123  LAW    OF    COPYRIGHT. 

panied  by  bona  fide  notes.^  But  with  this  exception, 
the  sole  right  to  print  the  Bible  and  the  Statutes,  is 
now  held  in  England  to  be  vested  in  the  two  univer- 
sities of  Oxford  and  Cambridge,  concurrently  with 
the  king's  patentees." 

4.  Almanacs.  A  patent  was  granted  by  James  I. 
for  the  exclusive  printing  of  almanncs,  which  were 
claimed  as  prerogative  copies,  upon  the  following 
curious  reasons  :  —  1st.  Because  an  almanac  has  no 
certain  author,  and  the  property  of  such  books  is  in 
the  king  ;  2dly.  Because  almanacs  regulate  the  feasts 
of  the  church.^  In  the  15  George  III.,  upon  a  case 
sent  from  the  court  of  chancery,  the  court  of  com- 
mon pleas,  after  two  arguments,  decided  that  the 
crown  had  not  a  prerogative  or  power  to  grant  the 
exclusive  printing  of  almanacs.^  A  bill  was  then 
brought  into  parliament  to  revest  the  monopoly  in 
the  universities  and  the  stationers'  company,  and  Mr. 
Erskine  was  heard  at  the  bar  against  it,  and  defeated  it. 

5.  The  Latin  Grammar.  The  foundation  of  the 
claim,  in  the  case  of  the  old  Latin  Grammar,  was  the 
allegation  that  it  was  originally  composed  and  pub- 
lished at  the  king's  expense.^  But  the  pretension  is 
now  considered  utterly  groundless.^ 


>  Maugham,  p.   106.     2  Evans's  Mod.  256.     Bacon's  Ab.   Preroga- 

Statutes  19,  note  11.  live,  F.  5.    4  Burr.  2317. 

^  Burke  on  Copyright,  p.  .0.  Lond.  •*  Stationers'  Co.  v.  Carnan,  2  W. 

1812.     Manners  v.  Blair,  3  Bligh"s  Black.  R.  1004. 

R.  (N.  S.)  *  4  Burr.  2329,  2101. 

'  Stationers'  Co.  v.  Seymour,  1  •  lb.  2315.     3  P.  Williams,  255. 


KEPORTS    OF    JUDICIAL    PROCEEDINGS.  129 

X.  Reports  of  Judicial  Proceedings.  The 
house  of  lords,  in  England,  has  for  a  long  time  claim- 
ed and  exercised  the  right  to  appoint  the  publisher 
of  any  trial  that  takes  place  before  it,  as  an  exclusive 
privilege,  and  the  practice  has  been  to  order  that  the 
lord  chancellor  do  cause  the  trial  to  be  published, 
and  that  no  other  person  do  presume  to  print  or  pub- 
lish the  same.^  The  lord  chancellor  appoints  a  pub- 
lisher of  the  trial,  upon  this  order,  and  it  seems  that 
any  one  who  infringes  upon  the  exclusive  privileges 
thus  conferred,  may  be  enjoined  by  a  court  of  equity.- 
But  it  does  not  appear  to  be  held  that  the  order  of 
the  house  confers  anything  like  literary  property  ; 
but  that  it  proceeds  upon  the  ground  that  the  house, 
as  a  court  of  justice,  exercises  of  right  a  superintend- 
ence over  the  publication  of  its  own  proceedings,  on 
the  principle  that  such  superintendence  is  necessary 
for  the  due  and  impartial  administration  of  the  laws.^ 
It  is  likened  to  the  publication  of  the  statutes  by  the 
king's  patentee,  and  the  person  who  is  appointed 
publisher  of  a  trial  is  said  to  stand  in  the  same  situa- 
tion as  the  king's  printer.^ 

The  courts  of  law  have,  in  modern  times,  claimed 
and  exercised  the  right  to  restrain  the  publication  of 
their  proceedings,  when  such  publication  would  be 
likely  to  defeat  the  ends  of  justice.^  Formerly  it 
was  held  to  be  a  contempt  of  court  to  publish  any 

'  Gurney  v.  Longman,   13  Ves.         *  Ibid. 
193,  506,  507.  '  The  king  v.  Clement,  4  13.  & 

^  Ibid.  Aid.  218. 

^  Ibid.     Godson,  p.  310. 


130  LAW    OF    COPYRIGHT. 

reports  whatever,^  but  the  practical  application  of 
this  doctrine  has  been  much  relaxed.  The  ancient 
doctrine  was,  that  the  property  of  all  law  books  is  in 
the  king,  because  he  pays  the  judges  who  pronounce 
the  law  ;  and  in  the  reign  of  Charles  II.  this  doc- 
trine was  twice  affirmed  by  the  house  of  lords,  in  re- 
lation to  Rolle's  Abridgment,-  and  Croke's  Reports.^ 
Soon  after  the  restoration,  an  act  of  parliament, 
founded  apparently  upon  the  doctrine  of  the  king's 
prerogative  copy,  prohibited  the  printing  of  law 
books  without  the  license  of  the  lord  chancellor,  the 
two  chief  justices  and  the  chief  baron  ;  and  in  con- 
sequence of  this  act,  it  became  the  practice  to  prefix 
such  a  license  to  all  reports  published  after  that  pe- 
riod, in  which  it  was  usual  for  the  rest  of  the  judges 
to  concur,  and  to  add  to  the  imprimatur  a  testimonial 
of  the  learning  and  judgment  of  the  author.^  The  act 
was  renewed  from  time  to  time,  but  finally  expired  in 
the  reign  of  King  William.  But  the  same  form  of 
license  continued  in  use  until  the  judges,  as  it  is  said, 
came  to  a  resolution  not  to  grant  them  any  longer,  and 
from  Douglass  down  to  the  present  day,  the  Reports 
have  appeared  without  them.^  Sir  James  Burrow 
offers  an  apology  for  publishing  his  Reports  without 
an  imprimatur,  and  says  he  is  aware  that  it  is  a  con- 
tempt of  court  to  publish   their   proceedings.^     It 

■  Preface  to  Sir  J.  Burrow's  Re-  "  Preface  to  Douglass's  and  Bur- 
ports,  row's  Reports. 

*  Carter   89.      Bacon's    Abridg.  ^  Ibid. 

Prerog.  F.  5.     4  Burr.  2315.  ^  Preface,  1  Burrow's  R.  p.  vii. 

»  Skinner,  234,  1  Mod.  217.    Ba- 
con ut  supra.     4  Burr.  2316. 


REPORTS    OF    JUDICIAL    rROCEEDINGS.  131 

seems,  however,  that  since  the  Year  Books,  no  judi- 
cial proceedings  have  been  published  under  authori- 
tative care  and  inspection,  either  by  the  house  of 
lords,  or  by  any  court  in  Westminster  Hall,  except 
state  trials.' 

The  idea  of  property  in  the  king,  as  the  chief 
foundation  of  the  prerogative  copies,  has  been  long 
abandoned,  with  reference  to  most  of  them,  and  such 
as  still  exist  are  upheld  by  reasons  of  convenience 
and  of  the  relation  of  the  king,  as  head  of  the  state 
and  the  church,  to  his  subjects.  The  practice  of 
treating  the  publication  of  judicial  proceedings  as 
a  contempt,  except  in  cases  where  a  special  order 
has  been  made,  has  fallen  into  desuetude  ;  and  on  the 
other  hand,  the  courts  take  no  official  measures  for 
the  publication  of  their  judgments.  There  is  there- 
fore no  other  right  of  property  acquired  by  the  re- 
porters in  the  judgments  of  the  courts,  than  such 
as  is  founded  on  the  diligence  and  skill  that  may 
be  used  in  taking  notes  in  court  of  what  may  fall 
from  the  judges.  If  the  judgments  are  in  some  cases 
furnished  to  them  in  manuscript  by  the  court,  there 
seems  to  be  no  ground  upon  which  it  can  be  said  that 
the  court  thereby  confers  anything  like  a  right  of 
property  upon  the  reporters.  The  statements  of  the 
cases  and  the  arguments  of  counsel  may  be  the  sub- 
ject of  property  in  the  reporter,  by  reason  of  his  per- 
sonal skill  and  diligence  in  reporting  them,  which 


Ibid. 


132  LAW    OF    COPYRIGHT. 

make  them  to  a  certain  extent  his  own  compositions. 
It  was  apparently  upon  this  ground  that  the  copy- 
rights of  the  Term  Reports  and  the  Reports  of  Vesey 
Jr.  have  both,  at  different  times,  been  protected  by 
injunction.^ 

In  America,  the  subject  of  copyright  in  the  reports 
of  the  decisions  of  the  Supreme  Court  of  the  United 
States,  has  undergone  very  elaborate  discussion  in 
that  tribunal.  By  an  act  of  congress,  the  Supreme 
Court  of  the  United  States  is  attended  by  an  official 
reporter,  who  receives  a  stated  salary  from  the  gov- 
ernment, and  is  required  to  furnish  a  certain  number 
of  copies  of  his  reports  to  the  department  of  state  for 
the  use  of  the  government.  But  the  court,  in  the 
case  here  alluded  to,  were  unanimously  of  opinion 
that  the  reporter  can  have  no  copyright  in  the  writ- 
ten opinions  delivered  by  the  court,  and  that  the 
judges  cannot  confer  upon  any  reporter  any  such 
right.^  The  ground  of  this  decision  was,  that  the 
opinions  of  the  court,  being  published  under  the 
authority  of  congress,  were  not  the  proper  subject 
of  private  copyright.     But  it  was  not  doubted  by  the 


'  Bulterworlh  v.  Robinson,  5  injunction  upon  evidence  of  a  pre- 
Ves.  70!).  Vesey  f.  Sweet,  cited  sumed  consent  by  the  plaintiffs. 
5  Ves.  709,  note  3  (Sumner's  Edi-  The  case  is  reported  as  presenting 
tion.)  In  Saunders  v.  Smith,  3  the  quare,  whether  it  is  not  piracy 
Mylne  &  Cr.  711,  it  appears  that  to  print,  at  full  length,  cases  con- 
copyrights  of  the  Term  Reports  and  tained  in  the  Law  Reports,  although 
the  Reports  of  P]ast,  Taunton,  Rarne-  with  the  addition  of  notes,  however 
well  &  Cressvvell,  and  Bingham,  voluminous.  The  book  complained 
were  claimed  by  the  plaintiffs  as  their  of  was  Smith's  Leading  Cases, 
property,  but  the  Lord  Chancellor  *  Wheaton  v.  Peters,  8  Peters 
assuming  but  not  deciding  the  legal  R.  591,  068. 
right,  decided  the  application  for  an 


REPORTS    OF    JUDICIAL    PROCEEDINGS.  133 

court  that  the  reporter  had  a  copyright  in  his  own 
marginal  notes,  and  in  the  arguments  of  counsel,  as 
prepared  and  arranged  in  his  work.^ 

'  Per  Story  J.  in  Gray  v.  Russell,  1  Story's  R.  4. 


13 


CHAPTER   III. 

OF  THE  PERSONS   ENTITLED  TO  THE   PROTECTION  OF 
THE   STATUTES. 

The  author,  or  his  assignee,  of  any  publication 
entitled  to  the  protection  of  copyright,  may  secure 
the  benefits  of  the  law  ;  but  an  important  question 
arises,  whether  the  citizenship  of  the  author  affects 
in  any  way  the  exercise  of  this  right. 

In  England,  the  statute  of  Anne,  while  it  secured 
a  copyright  to  authors  generally,  contained  a  proviso 
that  nothing  therein  should  be  construed  to  extend 
to  prohibit  the  importation,  or  selling  of  any  books 
in  Greek,  Latin  or  any  other  foreign  language,  print- 
ed beyond  the  seas.  Under  this  act,  it  was  possible 
that  a  Latin  book  might  be  written  and  first  publish- 
ed in  England,  and  afterwards  republished  abroad, 
and  then  imported  into  England.  To  remedy  this 
defect,  the  12  George  II.  c.  36,  prevented  the  im- 
portation into  England  of  books  printed  in  England 
and  reprinted  in  any  other  country.  These  are  the 
only  statutes  which  bear  upon  the  subject  of  foreign 
books,  prior  to  the  1  and  2  Vict.   c.  59  ;  and  they 


COPYRIGHT    BY    ALIEN    FRIEND.  135 

left  open  the  questions,  whether  a  foreigner  could 
take  a  copyright  in  England  of  a  work  which  he  first 
publishes  there  ;  whether  a  British  subject  could 
take  a  copyright  of  a  work  which  he  had  bought  in 
manuscript  from  a  foreign  author  ;  and  whether  a 
foreign  author  could  take  a  copyright  in  England 
after  he  had  published  his  work  abroad. 

Upon  the  first  of  these  questions,  whether  an  alien 
friend,  by  first  publishing  his  work  in  England,  can 
take  a  copyright  there,  a  strong  opinion  in  the  affirm- 
ative has  been  expressed  and  acted  upon,  in  equity. 
Sir  L.  Shadwell,  V.  C,  in  a  recent  case,  said,  that  if 
an  alien  friend  wrote  a  book,  whether  abroad  or  in 
England,  and  gave  the  British  public  the  advantage 
of  his  industry  and  knowledge  by  first  publishing  the 
work  there,  he  was,  in  his  opinion,  entitled  to  the 
protection  of  the  statutes.  But  as  the  question  was 
a  legal  one,  he  directed  an  action,  which  was  brought, 
and  the  defendant  consented  to  a  verdict.^ 

The  International  Copyright  Act,  1  and  2  Vict, 
c.  59,  is  silent  upon  this  question,  although  it  de- 
clares that  foreign  authors,  who  first  publish  out  of 
her  Majesty's  dominions,  can  have  no  copyright  ex- 


'  Bentley  V.  Foster,  10  Sim.  .'529.  semhle,  that  a  foreigner  who  resides 

In  a  more  recent  case.  Lord  Lynd-  and  publishes  in  England,  is  entitled 

hurst,  C.  B.,  intimated  the  opinion,  to  copyright  like  a  British  subject, 

that  an  alien  friend,  first  puldishiiig  D'Almaine  v.  Boosey,  1  Y.  &  Col. 

in  England,  is  entitled  to  the  protec-  288,  2!i8.     The  statutes  are  consist- 

tion   of  the   statutes.      Chappel  r.  ent  with  a  foreigner  bringing  a  work 

Purday,  4  Y.  &  Coll.  485,  488.     It  with  him,  and  publishing  or  selling 

seems  also  that  the  case  of  Bach  v.  it  in  England.     Ptr  Ld.  Lyndhurst, 

Longman,  Cowp.  623,   was  an  ac-  C.  B.  in  Chappel  u.  Purday,  4  Y.  & 

tion   brought  by  a  foreigner ;  and  Col.  485,  490. 


136 


LAW    OF   COPYRIGHT. 


cept  under  its  provisions.^  This  omission  furnishes 
a  strong  presumption  that  alien  friends,  who  may  first 
publish  in  England,  are  understood  to  be  entitled  to 
the  protection  of  the  statute. 

The  second  question,  whether  a  British  subject, 
who  buys  an  unpublished  work  of  a  foreign  author, 
can  make  it  the  subject  of  copyright  in  England,  has 
likewise  been  answered  in  favor  of  the  right.  The 
English  assignee  of  a  foreign  musical  composer  ob- 
tained an  injunction  to  protect  the  work  in  England. 
It  was  held  that  the  plaintiff,  being  a  British  subject, 
could  acquire  the  copyright  as  well  from  a  foreigner 
as  from  an  Englishman.  The  title  thus  acquired, 
depends  upon  the  common  law  right  of  the  assignee 
of  a  manuscript.^ 


*  See  Appendix,  p.  57. 

"  D'Almaine  v.  Boosey,  1  Y.  & 
Col.  288.  Before  Lord  Lyndhurst, 
in  the  Exchequer,  in  Equity,  in 
1835.  In  Chappel  v.  Purday,"4  Y. 
&  Col.  485,  495,  his  lordship  said, 
"  Many  points  have  been  introduced 
into  the  argument  which  were  not 
absolutely  necessary  in  the  view 
which  I  take  of  this  case,  but  as  I 
have  been  much  pressed  for  my 
opinion  upon  them  I  cannot  let 
them  fall  to  the  ground  without  ob- 
servation. A  question  was  made 
whether  the  statute  of  Anne  raises 
any  protection  for  foreigners,  and 
that  case  of  D'Almaine  v.  Boo- 
sey was  cited  to  show  that  I  had 
formed  that  opinion.  Therefore  I 
shall  address  a  few  words  to  that 
question.  The  statute  of  Anne  was 
pa.ssed  for  the  protection  of  British 
subjects.  It  does  not  in  terms  ex- 
tend its  protection  to  the  publica- 


tion of  foreigners.  But  take  the 
whole  question  together,  and  see 
whether  the  same  principles  do  not 
apply  to  both  cases.  I  may  be  al- 
lowed, perhaps,  to  state  in  the  pres- 
ence of  gentlemen  who,  no  doubt 
attend  to  matters  of  literature,  that 
when  I  came  to  the  profession  I 
took  a  great  interest  in  the  case  of 
Millar  v.  Taylor,  and  other  cases  of 
that  sort.  In  that  case  Lord  Mans- 
field and  two  of  the  judges  differed 
from  Mr.  Justice  Yates,  and  I  own 
1  think  that  to  the  material  parts  of 
Mr.  Justice  Yates's  argument  Lord 
Mansfield  made  a  successful  reply, 
though  unquestionably  the  argu- 
ments of  Mr.  Justice  Yates  were 
very  ingenious.  Lord  Mansfield 
said,  —  '  That  the  reasons  for  sup- 
porting the  author's  right  before 
publication  were  equally  applicable 
after  publication  ;  '  and  I  think  that 
was  a  successful  reply.     That  case 


COPYRIGHT    BY    ALIEN    FRIEND. 


137 


But  the  question,  whether  a  foreigner,  who  had 
first  published  abroad,  could,  before  the  act  1  and  2 
Vict.  c.  59,  afterwards  obtain  a  copyright  in  Eng- 
land, was  one  of  greater  difficulty.  Whether  the 
act  of  printing  and  publishing  abroad,  made  the  work 
at  once  publici  juris,  or  whether  there  was  an  inter- 
val, in  which,  by  due  diligence,  the  alien  author 
could  secure  a  copyright  in  England,  was  a  question 
which  had  been  left  undecided,  before  the  passing  of 
the  International  Copyright  Act.  It  had,  however, 
been  held,  that  where  an  author  first  published 
abroad,  and  instead  of  using  due  diligence,  forbore 
until  some  other  person  had  published  in  England, 
fairly  and  without  blame,  but  afterwards  published 
in  England  himself,  he  could  not  insist  upon  his  pri- 


was  disposed  of  at  common  law. 
But  the  case  of  Donaldson  v.  Beckett, 
(4  Burr.  2408,)  in  which  the  same 
question  was  raised,  went  to  the 
house  of  lords.  In  that  case  eight 
of  the  judg-es  were  of  opinion,  first, 
that  the  author  had  a  right  at  com- 
mon law  to  the  exclusive  puhlica- 
tion  of  his  work  in  the  first  instance. 
Lord  Mansfield,  the  ninth  judge, 
gave  no  opinion.  The  other  judges 
were  of  a  contrary  opinion.  Then 
the  second  question  was,  whether, 
admitting  the  author  had  originally 
a  right  at  common  law,  he  retained 
the  right  after  puhlication .  Mr.  Jus- 
tice Yates  thought  he  had  given  it  to 
the  public,  but  eight  of  the  judges 
were  of  opinion  that  he  did  retainit. 
That  being  the  case,  the  law  was 
then  settled  as  regarded  the  com- 
mon law  right.  But  then  the  ques- 
tion was,  whether  the  right  of  pro- 
tection given  by  the  common  law 
12* 


was  not  limited  by  the  statute  of 
Anne,  and  upon  that  the  majority 
of  the  judges  were  of  oi)inion  that 
the  statute  had  put  an  end  to  the 
right  which  had  existed  at  common 
law,  because  it  gave  the  protection 
for  fourteen  years,  and  no  longer. 
Now  the  statute  was  made  for  the 
protection  of  British  subjects  ;  but 
the  same  reasons  apply  to  protect  a 
foreigner.  We  must  presume  that 
the  foreign  law  would  do  the  same 
for  him,  and,  it  does.  A  foreigner, 
therefore,  having  a  copyright  in  his 
own  country,  might  give  the  same 
right  to  a  British  subject.  There- 
fore, it  appears  to  me  that  a  for- 
eigner who  is  the  author  of  a  work 
unpublished  in  France,  may  com- 
mmiicatc  his  right  to  a  British  sub- 
ject, at  least  for  the  period  pre- 
scribed by  the  statute  of  Anne,  that 
is  to  say,  fourteen  years." 


138  LAW    OF    COPYRIGHT. 

vilege,  and,  at  a  distance  of  time,  stop  a  publication 
which  had  taken  place  in  the  interim,  and  treat  the 
continuation  of  that  publication  as  a  piracy.^  So  too, 
where  the  plaintiff  had  acquired  an  equitable  title  to 
a  copyright,  so  far  as  related  to  Great  Britain,  of  a 
work  composed  and  published  in  France,  and  after- 
wards obtained  a  legal  conveyance,  but  had  in  the 
interim  sold  several  copies  to  the  defendant,  who 
republished  it,  other  copies  having  been  imported  by 
other  tradesmen,  an  injunction  was  refused.^  But  it 
is  now,  by  the  1  and  2  Vict.  c.  59,  §  14,  declared, 
that  the  author  of  any  book  to  be  after  the  passing 
of  the  act  first  published  out  of  her  Majesty's  domin- 
ions, or  his  assigns,  shall  have  no  copyright  within 
her  Majesty's  dominions,  otherwise  than  such  (if 
any)  as  he  may  become  entitled  to  under  this  act, 
namely,  by  treaty.^ 

The  object  of  the  acts  which  protect  engravings, 
(8  George  II.  c.  13  ;  7  George  III.  c.  38,  and  17 
George  III.  c.  57,)  was  to  protect  those  works  which 
were  designed,  engraved,  etched,  or  worked  in  Great 
Britain,  and  not  those  which  were  designed,  engrav- 
ed, etched  or  worked  abroad,  and  only  published  in 

'  Clemenli  v.  Walker,  2  B.  &  C.  at  that  time  there  was  no  convey- 

861.     See   also  D'Almaine  v.  JJoo-  aiice,)    had  permitted  the   books  to 

sey,  1  Y.  &  Col.  298.     Guichardi;.  be  iinported  here,   arid  sold  without 

Mori,  9  Law  J.  227.  interference,  is  afterwards  to  be  at 

*  Chappel  V.  Purday,  4  Y.  &  Col.  liberty  to  come  forward,    and   say, 

485,41)5.     Lord  Lyndhurst,   C.  B.  that  no  party  shall  do  the  like  again? 

said,  "  This  ca.se  is  not  exactly  the  It  is  ati  important  question,   and  I 

same  as  (Jlementi  v.  Walker.     The  think  it  is   suflicienily  doubtful,  to 

question  is,  whether  a  party,  who,  prevent  my  interfeience  by  injunc- 

before  the  copyright  had  been  ac-  tion  until  it  is  decidi-d." 
tually  parted  with  to  him,  (because        *  See  Appendix,  p.  57. 


DRAMATIC    COPYRIGHT.  139 

Great  Britain  ;  and  therefore  prints  engraved  and 
struck  off  abroad  and  only  published  in  England,  are 
not  entitled  to  protection.^ 

In  theatrical  and  musical  compositions  the  English 
law  secures  to  the  author  a  double  copyright,  and 
each  of  the  rights  may  be  assigned.  A  published 
play,  or  musical  composition,  when  duly  entered,  is 
protected  like  other  books  ;  and  whether  published 
or  unpublished,  the  author  may  enjoy  the  sole  right 
of  representation  or  performance,  under  the  acts 
3  Wm.  IV.  c.  15,  and  5  and  6  Vict.  c.  45,  §  20." 

The  first  of  these  acts  was  passed  10th  June,  1833, 
and  it  provided,  among  other  things,  that  the  author 
of  any  tragedy,  comedy,  play,  opera,  farce,  or  any 
other  dramatic  piece  or  entertainment,  printed  and 
published  within  ten  years  before  the  passing  of  the 
act  by  the  author  thereof  or  his  assignee,  or  which 
should  thereafter  be  so  printed  and  published,  or  the 
assignee  of  such  author,  should  have  as  his  own  pro- 
perty the  sole  liberty  of  representing,  or  causing  to 
be  represented  such  production,  for  a  certain  term  of 
years.^  Upon  this  provision,  the  question  arose, 
whether  the  assignee  of  all  the  author's  right,  title, 
and  interest  in  the  copyright  of  a  play,  printed  within 
ten  years  before  the  passing  of  the  act,  where  the 
assignment  was  also  made  before  the  passing  of  the 
act,  was  to  be  deemed,  in  the  sense  of  the  statute, 
the  assignee  of  the  author,  so  as  to  be   entitled,  as 

'  Page  V.  Towiisencl,  5  Simons,        *  See  Appendix,  pp.51,  75. 
395.  '  Ibid.  p.  51. 


140  LAW    OF    COPYRIGHT. 

against  the  author,  to  the  sole  right  of  representa- 
tion, as  well  as  to  the  copyright  of  publication.  The 
court  of  king's  bench  held  that  such  a  party  was  the 
assignee  of  the  author,  in  the  sense  of  the  statute,  and 
by  virtue  of  the  act  became  entitled  to  the  sole  right 
of  representation.^ 

To  prevent  this  consequence,  the  5  and  6  Vict, 
c.  45,  §  22,  enacts,  that  no  assignment  of  the  copy- 
right of  a  book  consisting  of  or  containing  a  dramatic 
piece  or  musical  composition,  shall  convey  to  the  as- 
signee the  right  of  representation  or  performance, 
unless  an  entry  of  the  assignment  be  made  in  the 
registry  book,  expressing  the  intention  of  the  parties 
that  such  right  should  pass  by  the  assignment.^ 

By  the  8  George  II.  c.  13,  §  1,  the  property  in 
historical  and  other  prints  was  vested  in  engravers, 
who  took  from  their  own  designs.^  By  the  7  George 
III.  c.  38,  §  1,  the  benefit  of  the  former  act  was  ex- 
tended to  the  prints  of  any  portrait,  conversation, 
landscape  or  architecture,  map,  chart  or  plan,  or  any 
other  prints  whatsoever,  whether  taken  from  the 
artist's  own  original  designs,  or  from  any  picture, 
drawing,  model,  or  sculpture,  either  ancient  or  mo- 
dern.^ 

In  prints,  therefore,  the  designs  of  which  are 
original,  (with  the  exception  of  maps,  charts,  or 
plans,)  the  property  can  only  be  vested  in  the  person 
who  has  made   the  design  himself,  whether  he  en- 

'  Cumberland  V.  Planch6,   1  Ad.         '^  See  Appendix,  p.  76. 
&  Ellis,  580.  »  Ibid.  p.  8.  *  Ibid.  p.  15. 


MAPS MUSICAL    COMPOSITIONS.  141 

graves  or  causes  it  to  be  engraved.  A  person  pro- 
curing a  drawing  to  be  made,  is  not  entitled  to  the 
protection  of  the  statutes.^ 

The  manner  in  which  the  assignee  of  a  print  or 
engraving,  in  England,  becomes  entitled  to  protec- 
tion, has  been  pointed  out  in  a  former  chapter. ~ 

Maps,  charts  and  plans,  and  musical  compositions, 
are,  by  the  5  and  6  Vict.  c.  45,  §  2,  placed  upon  the 
same  footing  as  "  books,"  and  therefore  the  title  de- 
rived from  authorship  in  such  productions  is  to  be 
regulated  by  the  same  rules  as  in  the  case  of  books. ^ 

The  protection  of  sculpture,  in  England,  depends 
upon  the  provisions  of  the  54  George  III.  c.  56, 
which  vests  a  copyright  in  the  person  who  has  made 
or  caused  to  be  made  the  new  and  original  sculpture, 
model,  copy  or  cast,  of  the  subjects  therein  recited.* 

In  the  United  States,  there  can  be  no  copyright  of 
a  book,  map,  chart,  or  musical  composition,  print, 
cut  or  engraving,  unless  the  author  be  a  citizen  of 
the  United  States,  or  resident  therein,  at  least  at  the 
time  of  publication.  Whether  it  is  necessary  that 
the  work  should  have  been  made  or  composed  in  the 
United  States,  or  while  the  author  was  a  citizen  of, 
or  resident  in  the  country,  does  not  present  a  ques- 
tion of  much  doubt.  The  provisions  of  the  statute 
are  these  : 

"  Any  person  or  persons,  being  a  citizen  or  citizens 


*  Jeffreys  v.  Baldwin,  Ambl.  IG4.         '  Ante,  page  112. 
Godson  on  Patents  and  Copyright,        '  See  Appendix,  p.  64. 
403-404.  ♦  Ibid.  p.  3d. 


142  LAW    OF    COPYRIGHT. 

of  the  United  States,  or  resident  therein,  who  shall  be 
the  author  or  authors  of  any  book  or  books,  map, 
chart,  or  musical  composition,  which  may  be  now 
made  or  composed,  and  not  printed  and  published, 
or  shall  be  hereafter  made  or  composed,  or  who 
shall  invent,  design,  etch,  engrave,  work,  or  cause 
to  be  engraved,  etched,  or  worked  from  his  own  de- 
sign, any  print  or  engraving,  and  the  executors,  ad- 
ministrators, or  legal  assigns  of  such  person  or  persons 
shall  have  the  sole  right  and  liberty  of  printing,  re- 
printing, publishing  and  vending  such  book  or  books, 
&c.,  in  whole  or  in  part,  for  the  term  of  twenty-eight 
years  from  the  time  of  recording  the  title  thereof,  in 
the  manner  hereinafter  directed."  ' 

It  would  seem,  upon  this  statute,  that  at  the  time 
of  recording  the  title,  whether  by  the  author  or  by 
his  assignee,  the  author  must  be  a  citizen  of  the 
United  States,  or  resident  therein.  What  constitutes 
such  residence  as  is  here  contemplated,  may  present 
a  question  of  some  difficulty.  Does  the  statute  mean 
that  the  party  shall  have  come  to  reside  animo  rcman- 
endi,  and  that  if  he  has  so  come,  he  may  take  a  copy- 
right before  he  can  become  a  citizen  of  the  United 
States  ?  Or  does  it  mean,  that  he  shall  have  come, 
not  only  with  the  intention  of  remaining,  but  also 
with  the  intention  of  becoming  a  citizen  ?  Or,  again, 
does  it  mean  that  he  shall  be  temporarily  resident 
only,  so  that  he  may  take  a  copyright  when  he  has 

'  Act  of  Congress,  Feb.  3,  1831,  ^  1. 


CITIZENSHIP    OR    RESIDENCE    OF    AUTHOR.       143 

come  solely  for  the  purpose  of  taking  it  ?  And  in 
either  case,  does  it  mean  that  he  must  have  resided, 
while  he  made  or  composed  his  work,  or  can  a  resi- 
dent foreigner  publish  and  take  a  copyright  of  a  work 
which  he  has  composed  abroad  ? 

The  intention  of  the  act  seems  to  have  been,  that 
the  author  should  be  a  citizen  of  or  resident  in  the 
United  States,  when  the  title  is  entered,  because  it 
is  to  such  citizens  or  residents  alone,  or  their  as- 
signees, that  the  law  grants  the  exclusive  right, 
which  is  secured  by  the  entry.  If  the  entry  were 
made  by  an  assignee,  before  the  author  had  come  to 
reside,  such  assignee  w^ould  have  the  common  law 
title  of  an  unpublished  manuscript  ;  and  the  common 
law  does  not  inquire  whether  the  title  to  an  unpub- 
lished work  was  derived  from  a  citizen  or  a  foreigner. 
But  the  statute  has  apparently  taken  away  the  com- 
mon law  right  derivable  from  anon-resident  alien,  as 
soon  as  the  work  is  published,  because  it  declares,  in 
effect,  that  the  persons  entitled  to  copyright,  shall 
be  only  such  authors  as  are  citizens  or  residents,  and 
their  assignees  ;  and  if  the  assignee  takes  his  title  be- 
fore the  author  has  come  to  reside,  he  takes  from  a 
person  who  is  not  within  the  privilege  of  the  statute, 
and  has  nothing  to  confer. 

The  kind  of  residence  contemplated  by  the  act  can 
only  be  gathered  from  its  general  scope  and  policy. 
The  same  provision  has  existed  in  all  the  acts  of 
congress  for  the  protection  of  authors,  and  the  gene- 
ral policy  of  all  these  statutes  has  been  the  encour- 


144  LAW    OF    COPYRIGHT. 

agement  of  native  literature.  On  one  side,  it  may 
be  said  that  the  statute  intended  to  encourage  all 
literature  that  should  be  first  published  in  the  United 
States,  and  that  the  industry  and  arts  connected  with 
the  manufacture  of  books  may  also  be  supposed  to 
be  objects  of  the  same  policy,  so  that  if  a  foreigner 
is  actually  resident  at  the  time  he  prints  and  pub- 
lishes here  a  work  that  has  never  been  printed  and 
published  elsewhere,  it  is  immaterial  whether  he 
came  animo  remanendi  aut  revertendi.  But  suppose  he 
brings  the  work  already  printed,  but  not  published  ; 
is  there  anything  in  the  act  which  declares  that  the 
paper  and  print  shall  be  products  of  American  indus- 
try ?  It  is  difficult  to  extract  from  the  act  anything 
like  a  tariff  protection  to  the  mere  arts  of  paper- 
making  and  printing.  Literary  labor  and  the  ad- 
vancement of  the  literature  of  the  country,  were  the 
great  objects  of  encouragement ;  and  it  is  by  no 
means  clear  that  all  literature,  first  published  in  the 
country,  is  not  included  in  the  scope  of  this  policy. 
But  the  question  is  not  free  from  difficulty,  and  re- 
mains for  judicial  determination.^ 

With  regard  to  the  place  where  the  work  may  have 
been  composed,  the  act  is  wholly  silent,  and  it  is 
obviously  immaterial,  whether  it  was  written  in  or 

1  The  8th  section  of  the  act  de-  tion,  print,  or  engraving,  written, 

clares  that  nothing  in   this  act  con-  composed,  or  made  by  any  person 

tained  shall  be  construed  to  extend  not    being  a  citizen  of  the  United 

to  prohibit  the  importation  or  vend-  States,  nor  resident  within  the  juris- 

ing,  printing  or  publishing  of  any  diction  thereof, 
map,  chart,  book,  musical  composi- 


AUTHORSHIP  IN  ENGRAVINGS.         145 

out  of  the  country,  provided  the  author  comes  within 
the  description  of  persons  intended  by  the  statute  to 
be  benefited.  Any  other  construction  would  equally 
deprive  citizens  of  the  United  States  of  the  benefit  of 
copyright  in  works  written  abroad,  though  first  pub- 
lished at  home  ;  which  clearly  could  not  have  been 
intended. 

The  person  who  is  to  be  regarded  as  the  author 
of  a  print  or  engraving,  so  as  to  be  entitled  to 
copyright,  is  he  who  has  invented  and  designed  and 
personally  etched,  engraved  or  worked  it,  or  who 
has  caused  it  to  be  engraved,  etched  or  worked 
from  his  own  design.  In  either  case,  the  design 
must  be  the  production  of  the  party  claiming  the 
copyright  ;  and  an  important  question  arises,  what 
constitutes  the  design  of  a  print,  in  the  sense  of  the 
statute  ? 

If  the  party  personally  engraves  the  subject  of  his 
conception,  then  he  is  both  the  inventor  and  designer ; 
since  he  has  not  only  conceived  the  subject  of  the 
picture,  but  has  represented  it  in  a  visible  form. 
But  if  the  engraving  is  made  by  another  under  his 
direction,  it  must  be  made  from  his  "  design  ;"  and 
the  question  is,  whether  this  term  means  only  the 
intellectual  conception,  or  work  of  the  imagination, 
before  it  is  reduced  to  some  visible  form,  or  whether 
it  implies  a  drawing  or  other  visible  representation  of 
the  invention,  by  the  hand  of  its  author.  Under  the 
act  of  29th  April,  1802,  ch.  36,  which  contained  a 
similar  provision,  it  was  held  by  Mr.  Justice  Wash- 

13 


146 


LA.W    OF    COPYRIGHT. 


ington,  that  the  party  must  not  only  have  invented, 
but  he  must  have  designed  or  represented  the  sub- 
ject in  some  visible  form,  from  which  the  engraver 
who  executes  it  must  have  taken  the  picture.^  The 
term  "  design,"  therefore,  means  the  visible  form 
given  to  the  conception  of  the  mind,  and  this  must  be 
done  by  the  inventor  himself^ 

We  have  no  statute  in  this  country  for  the  pro- 
tection of  prints  or  engravings  of  portraits,  or 
other  pictures,  models,  or  sculpture,  unless  the 
painter  or  sculptor  causes  or  authorizes  the  print  or 
engraving  to  be  made.  If  the  painter  of  a  picture 
procures  and  authorizes  it  to  be  engraved,  he  is,  as 
to  the  design,  within  the  statute  of  1831,  since  he  is 
the  author  of  the  design  thus  engraved,  and  may 
transfer  his  copyright  in  the  engraving  to  an  assignee. 
But  the  copyright  must  be  founded  on  the  title  of  the 
painter  as  the  author  of  the  design. 


*  Binns  v.  Woodruff,  4  Wash- 
ington's Rep.  48.  The  act  of  1802 
was  in  these  words  :  "  Any  person 
.being  a  citizen  of  the  United  States, 
or  a  resident  within  the  same,  who 
shall  invent  and  design,  engrave, 
etch  or  work,   or   from    his    own 


works  and  inventions  shall  cause  to 
be  designed  and  engraved,  etched  or 
worked  any  historical  or  other  print, 
shall  have  the  sole  right,"  &c. 

^  Ibid.  The  American  statutes 
on  the  subject  of  engravings,  are 
similar  to  the  8  George  II.  c.  13. 


CHAPTER  IV. 

CHARACTER  OF  THE  WORK  CLAIMING  PROTECTION. 

One  of  the  first  questions  that  present  themselves, 
in  considering  what  may  be  the  subject  of  a  valid 
copyright,  is,  whether  the  law  undertakes,  when 
asked  to  extend  its  protection,  to  notice  the  tendency 
or  usefulness  of  the  publication.  No  discrimination 
is  made  by  statute,  either  in  England  or  America, 
between  publications  of  a  good  and  those  of  a  bad 
tendency.  In  both  countries,  the  statutes  deal  in 
general  terms,  with  a  property  in  "books."  For 
the  protection  of  this  property,  various  remedies 
exist,  to  be  administered  by  the  public  tribunals ; 
and  it  is  only  when  the  tribunals  of  justice  are  ap- 
pealed to,  that  the  question  arises,  how  far  they 
may,  in  the  exercise  of  their  respective  jurisdictions, 
consider  the  moral  or  political  tendency  of  the  pub- 
lication, as  an  element  in  determining  whether  there 
exists  a  valid  right  of  property  in  such  publication. 

There  is  doubtless  a  general  right  in  every  politi- 
cal society,  to  declare  upon  grounds  of  public  policy 
in  what  things  it  will  permit  its  members  to  claim  and 


148  LAW   OF    COPYRIGHT. 

exercise  the  rights  of  property,  and  in  what  things 
it  will  not  permit  the  exercise  of  those  rights  to 
their  full  extent,  even  where  they  seem  to  spring 
from  the  rules  of  natural  right.  Thus,  a  man  may 
be  engaged  in  a  manufacture,  all  the  materials  of 
which  are  justly  and  truly  his  own,  but  if,  in  the  midst 
of  society,  the  process  of  such  manufacture  or  the 
product  itself  be  injurious  to  the  public  health  or  safety, 
society  may  and  will  not  only  interfere  to  prevent  or 
regulate  the  production,  but  will  even  destroy  the 
materials,  if  necessary  to  the  abatement  of  the  nui- 
sance. It  will  thus  greatly  abridge  and  even  wholly 
deny  the  otherwise  perfect  rights  of  property.  So 
that  although  the  protection  of  property  is  one  of 
the  ends  for  which  political  society  is  instituted,  and 
although  the  law  regards  every  innocent  right  of 
property  as  eminently  sacred,  yet  there  may  be 
cases,  in  which  the  title  becomes  inherently  de- 
fective, by  reason  of  a  necessary  principle  of  public 
policy,  which  makes  the  asserted  right  inconsistent 
with  the  public  good. 

The  true  ground,  therefore,  upon  which  the  re- 
fusal to  protect  a  particular  publication  rests,  would 
seem  to  be,  not  that  the  author  or  his  assignee  has 
not  prima  facie  a  naked  right  of  property,  but  that 
the  law  will  not  extend  its  active  protection  to  that 
naked  right,  when  it  can  be  enjoyed  only  for  mis- 
chievous purposes  or  with  injury  to  public  morals. 
The  rule  has  sometimes  been  laid  down  in  terms 
which  deny  that  there  is  any  property  at  all  in  a 


WORKS    INJURIOUS    TO  PUBLIC    MORALS.  149 

publication  of  an  immoral  or  mischievous  tendency ;  ^ 
and  so  far  as  the  rule  of  public  policy  tends  to  de- 
feat or  impair  the  beneficial  character  of  the  right 
of  property,  this  mode  of  enunciating  it  may  be  cor- 
rect. But  Strictly  the  prima  facie  right  of  property 
is  the  same  in  all  publications  ;  and  the  rule  of  public 
policy  merely  withholds  that  protection  to  which 
the  publication,  but  for  its  character  and  tendency, 
would  be  entitled.  This  distinction  is  not  unim- 
portant, for  it  places  the  burthen  of  proof  upon  the 
party  defending  the  piracy  or  denying  his  liability  to 
the  author,  to  show  clearly,  that  notwithstanding  the 
copyright  confers  ^  prima  facie  title,  yet  that  the  title 
is,  as  to  remedies,  inherently  defective,  by  reason  of 
requirements  of  public  polic3^  This  is  where  the 
burthen  ought  always  to  be,  in  cases  of  a  denial  of 
any  right  of  property  established  or  recognized  by 
the  law. 

In  America,  there  has  been  no  decision  involving 
this  question ;  but  the  English  authorities  have 
established  certain  general  principles,  some  of  which 
are  sound,  while  others  are  open  to  objection. 

1.  Works  injurious  to  public  morals.  By  the  law 
of  England,  (and  the  same  is  of  course  true  in  the 
United  States,)  when  the  character  of  a  book  is  such 
that  the  sale  of  each  copy  of  it  is  an  offence  against 
the  law,  the  first  publisher  can  maintain  no  action 
for  damages  against  any  person  who  afterwards  pub- 


'  2  Story's  Eq.  Jurispr.  ^  936.     Lawrence  v.  Smith,  Jacob's  R.  472. 

13» 


150  LAW    OF    COPYRIGHT. 

lishes  it,  upon  the  clear  principle  that  as  the  first 
publisher  had  and  could  have  no  right  to  sell,  he 
cannot  sustain  any  loss  by  an  injury  to  the  sale. 
This  was  conclusively  settled,  in  an  action  brought 
by  the  first  publisher  of  a  book  of  a  libellous  and 
obscene  character,  purporting  to  be  a  history  of  the 
amours  of  a  courtesan,  against  a  subsequent  pub- 
lisher ;  in  which  Abbott,  Lord  Chief  Justice,  said, 
"  It  would  be  a  disgrace  to  the  common  law  could  a 
doubt  be  entertained  upon  the  subject."^ 

2.  Works  injurious  to  religion.  With  regard  to 
publications  supposed  to  be  of  this  character,  the 
adjudged  cases  have  not  proceeded  upon  very  satis- 
factory doctrines.  The  general  principle  upon 
which  they  proceed  is  the  same  as  that  which  denies 
protection  to  a  work  injurious  to  public  morals. 

In  1822,  an  application  was  made  to  Lord  Eldon, 
for  an  injunction  to  restrain  a  piratical  edition  of 
Lord  Byron's  Cain.  The  injunction  was  refused, 
upon  the  ground  of  a  doubt,  whether  the  poem  was 
not  intended  to  vilify  and  bring  into  discredit  that 
portion  of  scripture  history  to  which  it  relates.  His 
lordship  read  the  poem,  and  refused  the  injunction 
until  the  counsel  for  the  plaintiff  should  show  him 
that  an  action  could  be  maintained   at  law.^     With 


'  Stockdalev.  Onwhyn,  5  B.  &  C.  tion   will  lie  for  pirating  a  work, 

173.     7  D.  &  Pt.  025.     2  C.  &  P.  then  the  court,  attending  to  the  im- 

163.     See  also  Fores  v.  Jones,  4  perfection  of  that  remedy,  grants 

Esp.  N.  P.  C.  97.  its  injunction,  because  there  may  be 

*  "  The  jurisdiction  of  this  court,  publication   after  publication  which 

in    protecting   literary    property,  is  you  may  never  be  able  to  hunt  down 

founded  on  this,  that  where  an  ac-  by  proceeding  in  the  other  courts. 


WORKS   INJURIOUS   TO    RELIGION. 


151 


great  submission,  I   am  obliged   to  diflfer  from  the 
reasoning   employed   by  his  lordship   in    this    case. 


But  where  such  an  action  does  not 
lie,  I  do  not  apprehend  that  it  is  ac- 
cordinfT  to  the  course  of  the  court 
to  grant  an  injunction  to  protect  tlie 
copyright.  Now  this  publication,  if 
it  is  one  intended  to  vilify  and  bring 
into  discredit  that  portion  of  scrip- 
ture history  to  which  it  relates,  is  a 
publication,  with  reference  to  which, 
if  the  principles  on  which  that  case 
at  Warwick  (Dr.  Priestley's  case) 
was  decided,  be  just  principles  of 
law,  the  party  could  not  recover  any 
damages  in  respect  of  a  piracy  of  it. 
This  court  has  no  criminal  jurisdic- 
tion ;  it  cannot  look  on  anything  as 
an  offence ;  but  in  those  cases  it 
only  administers  justice  for  the  pro- 
tection of  the  civil  rights  of  those 
who  possess  them,  in  consequence 
of  being  able  to  maintain  an  action. 
You  have  alluded  to  Milton's  im- 
mortal work  ;  it  did  happen  in  the 
course  of  last  long  vacation,  I  read 
that  work  from  beginning  to  end  ; 
it  is  therefore  quite  fresh  in  my 
memory,  and  it  appears  to  me  that 
the  great  object  of  its  author  was  to 
promote  the  cause  of  Christianity ; 
there  are,  undoubtedly  a  great  many 
passages  in  it,  of  which,  if  that 
were  not  its  object,  it  would  be  very 
improper  by  law  to  vindicate  the 
publication ;  but,  taking  it  altogether, 
it  is  clear  that  the  object  and  effect 
were  not  to  bring  into  disrepute,  but 
to  promote,  the  reverence  of  our  re- 
ligion. Now  the  real  question  is, 
looking  at  the  work  before  me,  its 
preface,  the  poem,  its  manner  of 
treating  the  subject,  particularly 
with  reference  to  the  fall  and  the 
atonement  —  whether  its  intent  be 
as  innocent  as  that  of  the  other  with 
which  you  have  compared  it ;  whether 
it  be  to  traduce  and  bring  into  dis- 
credit that  portion  of  sacred  history. 


This  question  I  have  no  right  to  try, 
because  it  has  been  settled,  after 
great  difference  of  opinion  among 
the  learned,  that  it  is  for  a  jury  to 
determine  that  point ;  and  where, 
therefore,  a  reasonable  doubt  is  en- 
tertained as  to  the  character  of  the 
work,  (and  it  is  impossible  fur  me 
to  say  I  have  not  a  doubt  —  I  hope 
it  is  a  reasonable  one,)  another 
course  must  be  taken  for  determin- 
ing what  is  its  true  nature  and 
character. 

"  There  is  a  great  difficulty  in 
these  cases,  because  it  appears  a 
strange  thing  to  permit  the  multi- 
plication of  copies,  by  way  of  pre- 
venting the  circulation  of  a  mis- 
chievous work,  (which  I  do  not 
presume  to  determine  that  this  is,) 
but  that  I  cannot  help  ;  and  the  sin- 
gularity of  the  case,  in  this  instance, 
is  more  obvious,  because  here  is  a 
defendant  who  has  multiplied  his 
work  by  piracy,  and  does  not  think 
proper  to  appear.  If  the  work  be 
of  that  character  which  a  court  of 
cominon  law  would  consider  crimi- 
nal, it  is  pretty  clear  why  he  does 
not  appear,  because  he  would  come 
con  fit  ens  reus,  and  for  the  same 
reason  the  question  may,  perhaps, 
not  be  tried  by  an  action  at  law  ;  and 
if  it  turns  out  to  be  the  case,  I  shall 
be  bound  to  give  my  own  opinion. 
That  opinion  1  express  no  further 
now  than  to  say,  that  after  having 
read  the  work,  I  cannot  grant  the 
injunction  until  you  show  me  that 
you  can  maintain  an  action  for  it. 
If  you  cannot  maintain  an  action, 
there  is  no  pretence  for  granting  an 
injunction ;  if  you  should  not  be 
able  to  try  the  question  at  law  with 
the  defendant,  I  cannot  be  charged 
with  impropriety  if  I  then  give  my 
opinion  upon  it.     "  It  is  true  that  this 


152  LAW    OF    COPYRIGHT. 

Without  entering  into  the  question  of  criticism  raised 
by  comparing  the  poem  with  Paradise  Lost,  —  upon 
which  a  great  critic  and  poet  held  a  very  different 
opinion  from  that  expressed  by  Lord  Eldon  ^  —  and 
admitting  that  an  injunction  before  a  trial  at  law 
should  not  be  granted  in  a  palpable  case  of  malicious 
attack  upon  the  scriptures  or  the  doctrines  of  re- 
vealed religion,  it  is  yet  quite  too  strict  to  say,  that 
because  a  poem  admits  of  a  suspicion  of  improper 
intentions,  the  author's  copyright  is  not  to  be  pro- 
tected until  he  has  purged  himself  of  that  suspicion. 
The  boldness  aixl  license  of  poetry  admit  of  a  lati- 
tude which  would  not  be  allowed  in  didactic  prose  ; 
and  where  the  line  is  to  be  drawn  closely,  the  court 
may  not  only  mistake  the  tendency  and  intention  of 
the  work,  but  may,  as  Lord  Eldon  did  on  this  occa- 
sion, apply  its  own  views  of  doctrinal  subjects  to  de- 
termine the  innocence  of  the  author's  intention,  in- 
stead of  judging  it  by  that  broad,  liberal  and  catholic 
spirit  in  which  the  intent  of  all  poetry  is  to  be 
judged.^  If  canons  of  criticism  are  to  be  applied  in 
this  manner,  and  a  publication,  which  falls  under  the 

mode  of  dealing  with  the  work,  if  it  proceeded    against    directly   as    an 

be  calculated  to  produce  mischievous  offence  ;    but   whether  this  or  any 

effects,  opens  a  door  fur  its  wide  dis-  other  work  should  be  so  dealt  with, 

semination  ;  but  the  duty  of  stopping  it  would  be  very  improper  for  me  to 

the  work  does  not  belong  to  a  court  of  former  intimate  an   opinion."      (6 

equity,  which  has  no  criminal  juris-  PetersdorfT  Abr.  558-9.) 

diction,  and  cannot  punish  or  clicf-k  '  Sir  Walter  Scott;  LettertoJohn 

the  offence.     If  the  character  of  the  Murray,  Esq.  accepting  the  dedica- 

work  is  such,  that  the   publication  tion    of  Cain.     Lockhart's   Life   of 

of  it  amounts  to  a  temporal  offence,  Scott,  VI.  424,  2d  edition. 

there  is  another  way  of  proceeding,  *  See  the  Letter  above  cited. 
and  the  publication  of  it  should  be 


WORKS    INJURIOUS    TO    RELIGION.  153 

doubts  engendered  by  such  criticism,  is  to  be  refused 
protection  in  the  first  instance,  there  can  be  no  safe 
literary  property  in  the  higher  works  of  imagination, 
which  deal  with  such  subjects  as  man's  future  destiny 
or  the  events  of  scripture  history  ;  for  the  refusal  of 
a  court  of  equity  to  grant  an  injunction  in  such  cases, 
would  be  only  a  signal  to  invite  more  piracies  than 
the  courts  of  law  could  check.  It  would  be  a  far 
more  sound  rule,  to  hold  that  unless  a  malicious  in- 
tent or  mischievous  tendency  be  apparent  on  its 
face,  every  work  \s  prima  facie  entitled  to  protection, 
until  the  bad  intent  and  tendency  are  established  by 
those  who  rely  upon  them.^ 

In  another  case,  Lord  Eldon  refused  to  continue 
an  injunction  to  restrain  a  pirated  edition  of  certain 
lectures  delivered  by  Mr.  Lawrence  at  the  college 
of  surgeons,  on  "  Physiology,  Zoology  and  the  Natu- 
ral History  of  Man."  He  doubted  whether  many 
particular  parts  of  the  w^ork  did  not  lead  to  a  dis- 
belief in  the  immortality  of  the  soul  —  one  of  the 
doctrines  of  the  scriptures.-  He  therefore  dissolved 
the  injunction,  and  left  the  plaintiff  to  bring  an 
action  at  law.^     In  this  case,  his  lordship  said  that 

'  See  Ilime  v.  Dale,  2  Campb.  unequal    position    with   a   piratical 

29,  note.     II  East,  244,  note.  piiblishor  in  a  court   of  law,  if  it 

*  Lawrence  v.  Smith,  Jacob's  R.  should   he   wortli  his  wliile   to  po 

471.  there  ;  for  both  court  and  jury  would 

'  It  seems  not  to   have  occurred  know  tliat  the  phiintifT  came  before 

to    Lord    Eldon  —  or   if  it   did,   he  them  after  he  had  been  turned  away 

gave  no  heed  to  the  consideraiion —  from  the  court  of  chancery,  upon 

that  tlie  mere  rumor  of  the  dissolu-  the   belief  or   doubt   raised   in   the 

tion    of    an    injunction   upon   such  mind  of  the   first  magistrate  in  the 

doubts  as  he  expressed  in  tliis  case,  realm  that  his  boolt  was  not  entitled 

would  place  the  author  in  a  most  to  the  protection  of  the  law. 


154  LAW    OF    COPYRIGHT. 

"  he  was  bound  to  look,  not  only  to  the  tenor,  but 
also  to  particular  passages  unconnected  with  the  general 
tenor;  for  if  there  were  any  parts  of  it  which  denied  the 
truth  of  scripture,  or  which  furnished  a  doubt  as  to 
whether  a  court  of  law  would  not  decide  that  they  had 
denied  the  truth  of  scripture,  he  was  bound  to  look 
at  them  and  decide  accordingly."  ^ 

If  this  is  to  be  regarded  as  the  statement  of  a  rule 
by  which  to  determine  the  validity  of  a  copyright,  it 
is  quite  unsound.  It  seems,  however,  to  be  only  a 
statement  of  the  rule  that  should  govern  a  court  of 
equity,  in  determining  whether  an  injunction  shall 
be  granted  before  the  right  of  property  has  been 
established  at  law.  But  even  in  this  view,  the  doc- 
trine is  not  satisfactory  ;  and  in  announcing  it,  Lord 
Eldon  is  inconsistent  with  himself.  In  the  previous 
case,  in  refusing  an  injunction  to  protect  Lord  By- 
ron's Cain,  he  had  said  of  Paradise  Lost,  that  there 
are  undoubtedly  a  great  many  passages  in  it,  of 
which,  if  the  promotion  of  Christianity  were  not  its 
object,  it  would  be  very  improper  by  law  to  vindi- 
cate the  publication  ;  but  that,  taking  it  altogether,  it 
is  clear  that  the  object  and  effect  were  not  to  bring 
into  discredit,  but  to  promote  the  reverence  of  our 
religion.^  Here,  his  lordship  assumed  as  the  crite- 
rion the  general  tenor  of  the  work  ;  and  it  is  not 
very  apparent  why  the  same  rule  should  not  have 
been  applied  to  Dr.  Lawrence's  Lectures.     In  the 

'  Lawrence  v.  Smith,  Jacob's  R.471.        ^  Murray  v.  Benbovv. 


WORKS    INJURIOUS    TO    THE    PUBLIC    PEACE.     155 

one  case,  the  good  general  object  of  the  work  ex- 
cuses from  censure  the  passages  which  would  be 
otherwise  inexcusable.  In  the  other  case,  the  al- 
leged bad  character  of  certain  detached  portions,  it 
is  said,  renders  the  general  tenor  of  the  work  wholly 
immaterial.^ 

3.  Works  injurious  to  the  public  peace.  The  general 
principle  of  the  law  of  England  on  this  subject  is, 
that  there  can  be  no  right  of  property  in  publica- 
tions which  tend  to  disturb  the  public  peace,  to  be 
injurious  to  the  good  government  of  the  state,  or  to 
bring  into  contempt  the  administration  of  justice. 
This  principle  has,  however,  sometimes  been  applied 
without  due  discrimination. 

There  is  a  dictum  of  Lord  Chief  Justice  Eyre,  re- 
ported traditionally,  upon  which  a  great  deal  more 
has  been  built  than  is  consistent  with  principle. 
Dr.  Priestley  brought  an  action  against  the  hundred 
for  damages  sustained  by  him  in  consequence  of  the 
riotous  proceedings  of  a  mob  at  Birmingham  ;  and, 
among  other  property  alleged  to  have  been  destroyed, 
claimed  compensation  for  the  loss  of  certain  unpub- 
lished manuscripts,  offering  to  produce  booksellers 
to  prove  that  they  would  have  given  considerable 
sums  for  them.  On  behalf  of  the  hundred,  it  was 
alleged  that  the  plaintiff  was  in  the  habit  of  publish- 


'  We   may  ask,  also,  what   his  part  of  scripture,  is  his  copyright 
lordship   means   by    "parts    which  thereby  vitiated ?     Or  is  it  the  gen- 
deny  the  truth  of  scripture  "  ?     If  eral   truth  of  scripture,   that   must 
an  author  introduce  into  his  book  a  not  be  denied  ? 
passage  denying  the  truth  of  aiii/ 


156  LAW    OF    COPYRIGHT. 

ing  works  injurious  to  the  government  of  the  state;  but 
no  evidence  was  produced  to  that  effect ;  upon 
which  Lord  Chief  Justice  Eyre  is  reported  to  have 
said,  that  if  any  such  evidence  had  been  produced, 
he  should  have  held  it  fit  to  be  received  as  against 
the  claim  made  by  the  plaintiff.^  In  this  case,  it  is 
obvious,  that  Dr.  Priestley  was  seeking  damages  for 
the  destruction  of  what  might  have  been  the  source 
of  pecuniary  profit.  The  dictum  of  the  Lord  Chief 
Justice,  therefore,  goes  only  to  this,  that  a  work  ex- 
isting in  manuscript  may  be  of  such  a  character  that 
the  author  cannot  make  lawful  profits  by  its  publi- 
cation, and  in  this  sense  it  may  be  said  that  there 
can  be  no  property  in  such  a  work.  But  this  posi- 
tion was  afterwards  assumed  to  justify  a  very  different 
doctrine,  namely,  that  the  author  of  an  unpublished 
manuscript,  of  a  character  not  innocent,  or  doubtful, 
cannot  have  the  interposition  of  a  court  of  equity  to 
restrain  its  publication  by  a  person  who  is  about  to 
publish  it  against  his  will ;  as  if  the  Lord  Chief  Jus- 
tice had  said,  that  any  one  of  the  mob  who  might 
have  stolen  one  of  Dr.  Priestley's  MSS.  could  have 
published  it,  as  against  the  author,  and  the  court  of 
chancery  would  not  have  interfered,  on  account  of 
the  character  of  the  work.  This  doctrine,  it  will 
presently  be  submitted,  is  untenable,  notwithstand- 
ing the  high  authority  by  which  it  has  been  counte- 
nanced. 

•  So  cited  in  Walcott  v.  Walker,  7  Ves.  1,  and  in   Southey  tJ.  Sher- 
wood, 2  Meriv.  437. 


WORKS    OF    SEDITIOUS    TENDENCY.  1-37 

In  the  year  1817,  Mr.  Southey,  the  poet,  made  ap- 
plication to  Lord  Eldon  for  an  injunction  to  restrain 
the  publication  of  a  poem  called  "  Wat  Tyler," 
which  he  had  left  for  a  long  time  in  the  hands  of  a 
bookseller,  unpublished.  The  motion  was  resisted 
upon  the  ground  that  the  work,  from  its  seditious 
tendency,  was  of  such  a  nature  that  there  could  be 
no  copyright  therein.  The  work  had  never  been 
printed  by  Mr.  Southey,  or  by  his  permission,  and 
his  application  to  the  court  proceeded  upon  the  right 
of  an  author  to  restrain  the  publication  of  his  own 
manuscript.  Lord  Eldon  said,  "  If  this  publication 
is  an  innocent  one,  I  apprehend  that  I  am  authorized, 
by  decided  cases,  to  say  that,  whether  the  author 
did  or  did  not  intend  to  make  a  profit  by  its  publica- 
tion, he  has  a  right  to  an  injunction  to  prevent  any 
other  person  from  publishing  it.  If,  on  the  other 
hand,  this  is  not  an  innocent  publication,  in  such  a 
sense  as  that,  an  action  would  not  lie  in  case  of  its 
having  been  published  by  the  author  and  subsequently 
pirated,  I  apprehend  that  this  court  will  not  grant 
an  injunction."  ^ 

It  may  admit  of  great  doubt,  whether  the  law  of 
England  recognizes  any  such  distinction  as  Lord  El- 
don here  seems  to  suppose.  It  does  undoubtedly 
say,  that  in  order  to  obtain  an  injunction,  or  to  re- 
cover damages,  to  protect  a  work  that  has  been  pub- 
lished by  the  proprietor,  the   work  itself  must  be 


•  Southey  v.  Sherwood,  2  Merivale,  435,  437. 

14 


158  LAW    OF    COPYRIGHT. 

innocent  ;  but  it  may  be  doubted  whether  the   law 
carries  this  distinction  into  the  case  of  an  unpub- 
lished work,  where  the  author  proceeds  merely  upon 
his  right  to  possess  and  control,  to  publish  or  not  to 
publish  his  own  manuscript.    Lord  Eldon  says  justly, 
that  "it  is  to  prevent  the  use  of  that  which  is  the 
exclusive  property  of  another,  that   an   injunction  is 
granted;"  but  he   seems  to  overlook  the  fact  that 
the   law  recognizes  two  kinds  or  degrees  of  pro- 
perty in  a  literary  work.     There  is   a  right  of  pro- 
perty, which  consists  in  the  right  to  take  the  profits 
of  a  book,  when  published  ;   and  there  is  also  a  right 
to  the  exclusive  possession  and  control  of  a  manu- 
script, or  the  right  to  publish  or  to  withhold  from 
publication    altogether.^     The   first  of  these  rights 
depends   now,  in   England    and   in  America,   upon 
statute.     The  other  is  a  right  at  common  law,  inde- 
pendent of  the  property  created  or  recognized  by 
statute.     The  law  of  England  has  never  said  that  an 
author  has  no  property  in  his  manuscript  qua  manu- 
script, or  in  the  ideas  and  sentiments  written  upon 
it  before  publication.     If  it  had,  it  would  only  be 
necessary  to  steal  a  manuscript,  in  order  to  be  able 
to  print  it  with  impunity  ;   and  the  author  could  only 
take  the  profits,  or  obtain  an  injunction,  by  showing 
that  he  himself  intended  to  publish  and  to  take  the 
profits.     It  has  long  been  settled,  however,  that  the 
author  and  proprietor  of  a  manuscript  has  the  sole 

'  See  Wheaton  v.  Peters,  8  Peters  S.  C.  R.  591. 


WORKS    or    SEDITIOUS    TENDENCY. 


159 


dominion  over  it,  and  may  obtain  an  injunction  to 
prevent  its  publication  by  another;  and  in  no  case 
has  it  been  considered,  that  his  right  depends  on  his 
intention  to  publish  and  to  make  a  profit.^  But  the 
cases  proceed  upon  the  ground  of  a  right  of  property; 
and  what  seems  to  be  intended  by  this  is  a  right  to 
the  possession  and  control  of  the  manuscript,  and  to 
publish  or  to  withhold  from  publication."  In  the 
great  case  of  Donaldson  v.  Becket,  in  the  house  of 
lords,  in  which  the  perpetual  right  of  authors  after 
publication  was  held  to  have  been  taken  away  by  the 
act  of  Anne,  eleven  of  the  judges  (including  those 
who  decided  against  some  of  the  claims  of  authors) 
affirmed  the  sole  right  and  dominion  of  an  author 
over  his  own  manuscript,  as  a  right  at  common 
law.^ 


'  Webb  V.  Rose,  cited  4  Burr. 
2330  ;  2  13ro.  P.  C.  138  ;  Forrester 
V.  Waller,  cited  ut  supra;  Pope  v. 
Curll,  2  Atk.  3 12  ;  Manley  i'.  Owen, 
cited  1  Burr.  2329,  2404  ;  Duke  of 
Queensbury  i'.  Shebbeare,  2  Eden's 
Ch.  R.  329,  cited  4  Uurr.  2330,  2397 ; 
Macklin  t- .  Richardson,  Amb.  09 1 . 

*  The  cases  of  injunctions  to  re- 
strain the  pul)lication  of  letters  pro- 
ceed upon  this  jn^round.  None  of 
them  proceed  upon  an  intention  to 
publish  and  to  make  a  profit.  Pope 
V.  Curll,  ut  supra.  Tliompson  v. 
Stanhope,  Amb.  737.  K;irlof  Gra- 
nard  v.  Dunkin,  1  Ball  &  Beat. 
207.  Perceval  r.  Phipps,  2  Yes. 
&  Bea.  19.  Gee  v.  Pritchard,  2 
Swanst.  402.  Lord  Eldon  admits 
the  right  to  control,  independLMit  of 
any  intention  to  publish  and  lake  the 
profits,  where  the  work  is  innocent. 


But  if  it  be  not  innocent,  and  the 
author  does  not  intend  to  publish, 
his  lordsliip  thinks  there  is  no 
ground  for  an  injunction.  But  why 
not,  as  much  as  in  the  case  of  an 
innocent  work  which  the  author  does 
not  intend  to  publish  !  In  neither 
case  docs  he  rest  upon  his  riciit  to 
the  profits,  but  upon  his  right  to 
control  his  own  writings.  The  ques- 
tion is,  does  the  law,  where  the 
work  is  not  innocent,  invalidate  the 
author's  right  over  his  manuscript, 
or  does  it  merely  say  that  the  profiis 
of  such  a  publication  are  unlawful 
gains'? 

^  Donaldson  v.  Becket,  4  Burr. 
2408.  2  Bro.  Pari.  Cas.  129.  The 
fi)llowing  extracts,  purporting  to  be 
made  in  the  language  of  the  judges, 
are  given  by  Mr.  Maugiiam.  in  his 
work    on   The   Laws   of   Literary 


160 


LAW    OF    COPYRIGHT. 


When,  therefore,  an  author  has  not  published,  or 
does  not  intend  to  publish  a  work  existing  in  manu- 
script, but  on  the  contrary  desires  and  intends  to 
withhold  it  from  publication,  the  question  as  to  its 
innocence  cannot  arise,  because  that  question,  ac- 
cording to  principle  and  the  decisions,  affects  only 
so  much  of  his  right  of  property  as  consists  in  the 
right  to  take  the  profits  of  the  publication.  It  is  in 
this  sense,  that  the  law  declares  there  can  be  no  pro- 
perty in  an  immoral,  irreligious,  or  seditious  publica- 
tion ;   and  not  that  there  can  be  no  right  to  the  ex- 


Property,  without  citinfT  the  source 
from  which  they  are  taken :  — 

"  Narcs,  J.  It  is  admitted  on 
all  hands  that  an  author  has  a  bene- 
ficial interest  in  his  own  manu- 
script. 

"  Ashurst,  J.  If  a  man  lends  his 
manuscript  to  a  friend,  and  his  friend 
prints  it,  or  if  he  loses  it,  and  the 
finder  prints  it,  an  action  would  lie. 

"Yates,  J.  Admitted  this  doc- 
trine. 

"  Blackstone,  J.  When  a  man, 
by  the  exertion  of  his  rational  pow- 
ers, has  produced  an  original  work, 
he  has  clearly  a  right  to  dispose  of 
it  as  he  pleases. 

"  Willes,  J.  I  declare  it  as  my 
opinion,  that  an  author  hath  an  indis- 
putable power  and  dominion  over 
his  manuscript. 

"Aston,  J.  An  author  hath  a 
natural  right  to  the  produce  of  his 
mental  labor. 

"Perrot,  B.  An  author  certainly 
hath  a  right  to  his  manuscript ;  he 
may  line  his  trunk  with  it,  or  he 
may  print  it. 

"  Gould,  J.  I  agree  that  an  au- 
thor hath  a  right  at  common  law  to 
his  manuscript. 

"  Smyth,  L.  C.   B.    The  cases 


prove,  and  it  is  allowed,  that  literary 
property  is  property  previous  to  pub- 
lication. 

"  De  Grey,  L.  C.  J.  There  can 
be  no  doubt  that  an  author  has  the 
sole  right  to  dispose  of  his  manu- 
script as  he  thinks  proper. 

"  Lord  ^Mansfield.  It  is  just  that 
an  author  should  reap  the  pecuniary 
profits  of  his  own  ingenuity  and 
labor." 

Sir  W.  D.  Evans,  in  the  notes  to 
his  edition  of  the  Statutes,  vol.  ii. 
p.  20,  n.  14,  commenting  upon  the 
decisions  granting  injunctions  in  fa- 
vor of  the  representatives  of  the  au- 
thors of  manuscripts,  has  intimated 
a  doubt  whether  a  mere  manuscript 
presents  such  a  case  of  property, 
that  an  injunction  can  be  founded  on 
it  at  the  suit  of  an  executor.  But  it 
is  apparent,  from  the  question  put  to 
the  judges  in  Donaldson  v.  Becket, 
4  Burr.~2408,  that  they  intended  to 
affirm  the  right  of  an  author  over 
his  own  manuscript  to  be  a  right  at 
common  law,  without  making  it  ne- 
cessary for  him  to  rest  upon  its  value 
as  a  marketable  commodity.  See 
also  White  v.  Gerooch,  2  Barn.  & 
Adol.  298.  Wheaton  v.  Peters,  8 
Peters  S.  C.  R.  591. 


WORKS    OF    SEDITIOUS    TENDENCY. 


IGl 


elusive  possession   and   control  of  whatever  a  man 
writes,  before  publication,  unless  it  be  innocent.' 


'  It  would  seem,  that  Lord  El- 
don's  remarks  in  the  case  of  Soiitli- 
ey  V.  Slicrwood,  must  be  very  im- 
perfectly reported.  He  is  reported 
to  have  made  the  followiuir  observa- 
tions at  tlic  time  of  the  hearinor : 
"  If  this  publication  is  an  innocent 
one,  1  apprehend  that  I  am  author- 
ized, by  decided  cases,  to  say  that, 
whether  the  author  did  or  did  not 
intend  to  make  a  profit  by  its  publi- 
cation, he  has  a  right  to  an  injunc- 
tion to  prevent  any  other  person 
from  publishing  it.  If,  on  the  other 
hand,  this  is  not  an  innocent  publi- 
cation, in  such  a  sense  as  that  an 
action  wuvdd  not  lie  in  case  of  its 
having  been  published  by  the  author 
and  subsequently  pirated,  I  appre- 
hend that  this  court  will  not  grant 
an  injunction.  Tiie  court  does  not 
interfere  in  the  way  of  injunction  to 
punish  or  to  prevent  injuries  done  to 
the  character  of  individuals  ;  but  it 
leaves  tlie  party  to  his  remedy  at 
law.  It  is  to  prevent  the  use  of  that 
which  is  the  exclusive  property  of 
another,  that  an  injunction  is  grant- 
ed. There  is,  however,  a  difference 
between  the  case  of  an  actual  publi- 
cation by  the  author,  which  all  the 
world  may  pirate,  and  that  of  a  man 
who,  having  comjiosed  a  work,  of 
which  he  afterwards  repents,  wishes 
to  witlihold  it  from  the  public.  I 
will  not  say  that  a  principle  might 
not  be  found  which  would  apply  to 
such  a  case  as  that ;  but  then  it  is 
necessary  to  take  all  the  circum- 
stances of  the  case  into  considera- 
tion. The  circumstances  of  the 
present  case  are  very  extraordinary. 
I  will  assume  that  the  work  is  of 
such  a  nature  that  the  sending  it 
forth  into  the  world  might  iiave 
been  treated  as  a  criminal  act.  In 
that  view  of  the  circumstances,  I 
14* 


have  no  jurisdiction  to  consider  its 
criminality.  The  work  was  com- 
posed so  long  ago  as  the  vear  1791. 
The  plaintilf's  alHdavii  ;idmils  that, 
in  that  year,  there  was  a  serious 
intention  of  publishing  it.  It  was 
sent  by  the  plaintiff  to  Mr.  Ridge- 
wav,  and  is  supposed  to  have  been 
delivered  by  him  to  Symonds.  The 
affidavit  goes  on  to  state  that  it 
was  afterwards  determined  nut  to 
publish  it.  I  will  suppose  that  it 
was  not  thought  worth  while  to 
publish  it,  in  a  pecuniary  view. 
Mr.  Ridgeway  gives  no  account 
how  it  passed  out  of  his  hands ;  and 
all  that  is  alleged  concerning  the 
subsequent  disposal  of  it  is,  that 
Mr.  Southcy,  living  in  the  country, 
forgot  it.  if  the  work  be  such  a 
one  as  it  has  been  described  to  be, 
it  is  extraordinary  that,  with  the 
change  alleged  to  have  taken  place 
in  Mr.  Southey's  opinions,  there 
should  be  nothing  stated  to  account 
for  its  having  been  left  by  him  in 
Mr.  Kidgeway's  hands  to  the  pre- 
sent time,  but  that  Mr.  Southey 
forgot  it.  It  is  impossible  that  Mr. 
Southey  could  have  forgotten  it. 
There  must  have  been  some  other 
reason.  If  a  man  loaves  a  book 
of  this  description  in  the  hands 
of  a  publisher,  without  assigning 
any  satisfactory  reason  for  doing  so, 
and  has  not  inquired  about  it  during 
twenty-three  years,  he  surely  can 
have  no  right  to  complain  of  its  be- 
ing published  at  the  end  of  that 
period." 

It  is  obvious,  that  the  case  for 
which  his  lordship  would  not  say, 
that  "  a  i)rinciple  might  not  be 
A)und,"  was  the  very  case  before 
him.  Mr.  Southey  had  sworn  in 
his  affidavit,  that  lie  had  forgotten 
having  left  the  IMS.  in  the  hands  of 


162 


LAW    OF    COPYRIGHT. 


Lord  Ellenborough,  in  the  case  of  Hime  v.  Dale, 
said,  "  If  the  composition  appeared,  upon  the  face  of 


Ridgeway,  with  whom  in  fact  he  had 
originally  deposited  it  ;  that  he  was 
very  desirous  it  should  not  be  pub- 
lished ;  and  his  counsel  rested  his 
application  upon  the  right  of  an  au- 
thor to  control  his  own  MSS.  Yet 
his  lordship,  if  correctly  reported, 
not  only  felt  authorized  to  say,  "  it 
is  impossible  that  Mr.  Southey 
could  have  forgotten  it,"  (there  was 
no  counter  affidavit)  ;  but  proceeded 
afterwards  to  decide  the  cause  with- 
out finding  the  principle  which  he 
intimates  might  have  been  found  for 
the  case  actually  made  by  the  appli- 
cation. With  regard  to  his  lord- 
ship's dictum,  contained  in  the  last 
sentence  of  the  passage  above  cited, 
it  seems  scarcely  necessary  to  say, 
that  nothing  short  of  a  license,  or 
an  assignment  of  copyrioht,  can  de- 
prive an  author  of  the  right  to  com- 
plain of  the  publication  of  his  own 
MS.  Whether  the  fact  of  his  hav- 
ing left  it  without  inquiry  for  three- 
atul-twenty  years,  explained  by  his 
affidavit  that  he  had  forgotten  it, 
would  be  presumptive  evidence  of  a 
license  or  an  assignment,  may  ad- 
mit of  much  doubt.  On  a  subse- 
quent day,  his  lordship  delivered 
judgment  as  follows  :  "  I  have  look- 
ed into  all  the  affidavits,  and  have 
read  the  book  itself.  The  bill  goes 
the  lengtii  of  stating,  that  the  work 
wiis  composed  by  Mr.  Southey  in 
the  year  1791 ;  that  it  is  his  own 
production,  and  that  it  has  been  pub- 
lished by  the  defendants  without  his 
sanction  or  authority ;  tiierefore 
seeking  an  account  of  the  profits 
which  have  arisen  from,  and  an  in- 
junction to  restrain,  the  publication. 
I  have  examined  the  cases  that  I 
have  been  able  to  meet  with,  con- 
taining precedents  for  injunctions  of 
this  nature,  and  I  find  that  they  all 


proceed  upon  the  ground  of  a  title 
to  the  property  in  the  plaintilf.  On 
this  head  a  distinction  has  been  ta- 
ken, to  which  a  considerable  weight 
of  authority  attaches,  supported,  as 
it  is,  by  the  opinion  of  Lord  Chief 
Justice  Eyre,  who  has  expressly 
laid  it  down,  that  a  person  cannot 
recover  in  damages  for  a  work  which 
is  in  its  nature  calculated  to  do  in- 
jury to  the  public.  Upon  the  same 
principle,  this  court  refused  an  in- 
junction, in  the  case  of  Walcot  v. 
Walker,  inasmuch  as  he  could  not 
have  recovered  damages  in  an  action. 
After  the  fullest  consideration,  I  re- 
main of  the  same  opinion  as  that 
which  I  entertained  in  deciding  the 
case  referred  to.  It  is  very  true 
that,  in  some  cases,  it  may  operate 
so  as  to  multiply  copies  of  mischiev- 
ous publications  by  the  refusal  of 
the  court  to  interfere  by  restraining 
them  ;  but  to  this  my  answer  is,  that 
sitting  here  as  a  judge  upon  a  mere 
question  of  property,  I  have  nothing 
to  do  with  the  nature  of  the  proper- 
ty, nor  with  the  conduct  of  the  par- 
ties except  as  it  relates  to  their  civil 
interests  ;  and  if  the  publication  be 
mischievous,  either  on  the  part  of  the 
author,  or  of  the  bookseller,  it  is 
not  my  business  to  interfere  with  it. 
In  the  case  now  before  the  court, 
the  application  made  by  the  plaintiff 
is  on  the  ground  only  of  his  civil  in- 
terest ;  and  this  is  the  proper  place 
for  such  an  application.  I  shall 
say  nothing  as  to  the  nature  of  the 
book  itself,  because  the  grounds 
upon  which  I  am  about  to  declare 
my  opinion  render  it  unnecessary 
that  I  should  do  so.  [His  lordship 
here  recapitulated  the  circumstances 
already  detailed,  of  the  original  in- 
tention to  publish,  the  subsequent 
abandonment  of  that  intention,  the 


LIBELLOUS    PUBLICATIONS. 


163 


it,  to  be  a  libel  so  gross  as  to  affect  the  public  morals, 
I  should  advise  the  jury  to  give  no  damages.  I  know 
the  court  of  chancery,  on  such  an  occasion,  would 
grant  no  injunction."  ^ 

4.   Works  injurious  to  private  reputation.     The  same 


length  of  time  during  which  the 
plaintiff  had  suffered  the  work  to  re- 
main out  ot"  his  possession  without 
inquiry,  and  its  recent  publication 
by  the  defendants.]  Taking  all 
these  circumstances  into  my  consid- 
eration, and  after  having  consulted 
all  the  cases  which  I  could  find  at 
all  regarding  the  question,  —  enter- 
taining also  the  same  opinion  with 
Lord  Chief  Justice  Eyre  as  to  the 
point  above  noticed,  —  it  appears  to 
me  that  I  cannot  grant  this  injunc- 
tion until  after  Mr.  Southey  shall 
have  establishpd  his  right  to  the 
property  by  an  action." 

From  this  it  would  seem  that  his 
lordship  really  refused  the  injunc- 
tion, partly  upon  the  ground  that  he 
was  not  satisfied  that  Mr.  Southey 
had  not  parted  with  his  right,  and 
partly  upon  the  ground  that  the 
work  was  one  with  which  the  court 
could  not  interfere.  Upon  both 
grounds,  the  decision  is  very  unsat- 
isfactory. 

'  Hime  v.  Dale,  2  Campb.  27,  n. 
This  was  an  action  for  pirating  the 
words  of  a  song  called  "  Abraham 
Newland,"  published  on  a  single 
sheet  of  paper.  Garroiv,  for  the 
defendant,  contended,  that  the  song 
was  of  such  a  description  that  it 
could  not  receive  the  protection  of 
the  law  in  whatever  sliape  it  ap- 
peared. It  professed  to  be  a  pane- 
gyric upon  money  ;  but  was  in  real- 
ity a  gross  and  nefarious  libel  upon 
the  solemn  administration  of  British 
justice.  The  object  of  this  compo- 
sition was,  not  to  satirize  fully,  or 


to  raise  the  smile  of  innocent  mirth, 
but,  being  sung  in  the  streets  of  the 
capital,  to  excite  the  indignation  of 
the  people  against  the  sacred  minis- 
ters of  the  law,  and  the  awful  du- 
ties they  were  appointed  to  perform. 
The  mischievous  tendency  of  the 
production  would  sufficiently  appear 
from  the  following  stanza ;  after 
hearing  which,  the  court  would  say 
whether  the  nonsuit  ought  to  be 
disturbed. 

"The  world  is  inclined. 
To  think  Justice  blind  ; 
Wt  wliivt  of  all  that.' 
She  will  blink  like  a  bat 
At  the  sicht  of  friend  Mmham  J^eirland  ! 
Oh,  Abraham  .yeirlmid  !     Mairical  Abraham 
J\'i'irlanil  ! 
Though  .lustice,  't  is  known, 
Can  see  throui:))  a  inilUione, 
She  can't  see  thro'  Abraham  JVcwland  ."' 

Lord  Ellenborough.  "  If  the 
composition  appeared  on  the  face  of 
it  to  be  a  libel  so  gross  as  to  affect 
the  public  morals,  I  should  advise 
the  jury  to  give  no  damages.  I 
know  the  court  of  chancery  on  such 
an  occasion  would  grant  no  injunc- 
tion. But  I  think  the  present  case 
is  not  to  be  considered  one  of  that 
kind  " 

Lawrence,  J.  "  The  argument 
used  by  Mr.  Garrow  on  this  fugitive 
piece  as  being  a  libel,  would  as 
forcibly  apply  to  The  Beggar's 
Opera,  where  the  language  and  al- 
lusions are  sufficiently  derogatory 
to  the  administration  of  public  jus- 
tice."—  It  is  certainly  not  easy  to 
see  the  seditious  tendency  of  the 
stanza  quoted  by  the  learned  coun- 
sel. 


164  LAW    OF    COPYRIGHT. 

general  motives  of  public  policy,  which  defeat  a 
copyright  in  a  seditious,  irreligious,  or  obscene  pub- 
lication, exclude  from  protection  libels  upon  private 
character. 

Such  works  are  wholly  excluded  from  the  protec- 
tion of  the  law.     An  action  cannot  be  maintained  at 

« 

law  for  the  invasion  of  that  which  a  man  calls  his 
property,  but  which  the  policy  of  the  law  will  not 
permit  him  to  consider  and  enjoy  as  property  ;  and 
a  court  of  equity  will  not  grant  an  injunction  where 
an  action  could  not  be  maintained  at  law,  even  upon 
a  submission  in  the  answer.^ 

The  principle  of  public  policy,  which  thus  defeats 
a  copyright  through  the  bad  character  of  the  work, 
has  been  met  with  the  objection  that  it  only  en- 
courages and  multiplies  the  circulation  of  mischiev- 
ous works.  But  to  this  objection  the  answer  has 
been  made,  that  so  far  as  the  action  of  courts  of 
equity  is  concerned,  those  courts  have  no  crimi- 
nal jurisdiction  ;  and  as  they  have  only  to  look  at 
the  civil  rights  of  parties,  if  such  rights  do  not 
exist  by  the  law  of  the  land,  they  cannot  restrain 
a  publication  which  one  man  has  as  much  right  to 
make  as  another,  where  neither  have   any  right  at 

•  Walcott  V.  Walker,  7  Ves.  1.  in    pieces;  Lord   Elleuhoroiifrh   in- 

So  upon  analdjjous  grounds,  where  structed   the  jury,  in  assessinfj  the 

an  artist  exhibited  for  money  a  pic-  damages,  not  to  consider  the  picture 

ture  called  "  lieauty  and  the  Beast,"  as  a  work  of  art,  but  to  award   the 

which  was  a  scandalous   libel  upon  plaintiff'   merely    the   value   of  the 

a  gentleman  and  his  wife,  who  was  canvas  and  paint  which  formed  its 

the   sister   of    the   defendant,    and  component  parts.     Du  Best  v.  Be- 

great  crowds  went  daily  to  see  it,  resford,  2  Campb.  511. 
till  the  defendant  one  morning  cut  it  > 


DOUBTFUL    POLICY    OF    THE    LAW.  165 

all.^  To  this  it  might  be  added,  that  so  far  as  the 
action  of  courts  of  law  is  concerned,  when  adjudica- 
ting between  party  and  party,  the  sole  inquiry  is, 
does  the  law  permit  a  copyright  in  an  immoral,  irre- 
ligious, or  seditious  publication  ?  If  not,  then  there 
can  be  no  damages  awarded  to  the  proprietor  of  such 
a  book.  The  public  consequences  of  the  operation 
of  this  principle  can  be  remedied  by  legislation 
alone.- 

At  the  same  time,  it  cannot  be  denied,  that  this 
salutary  general  principle  is  subject  to  great  difficul- 
ties in  the  application.  Great  care  should  be  exer- 
cised, not  to  pronounce  any  copyright  invalid  by 
reason  of  illegality  in  the  work  itself,  unless  it  is  a 
clear  case.  In  equity,  the  sounder  rule  w^ould  be  to 
refuse  no  injunction,  where  the  book  is  not  illegal 
"  upon  the  face  of  it  ;"  and  both  in  equity  and  at 
law,  the  defendant  should  not  be  relieved  of  the  bur- 
then of  proof,  by  any  disposition  on  the  part  of  the 
court  to  apply  its  private  opinions,  doctrines,  or 
standards,  to  the  publication  in  question.^     Prima 

'  Lawrences.  Smith,  Jacobs  R.  Story,  "can  hardly  admit  of  ques- 

471.     2  Story's  Eq.  Jurisp.  ^937.  tion.    The  chief  embarrassment  and 

*  For  an  iuterestinfr  discussion  on  difficulty  lie  in  the  application  of  it 

the  effects  of  refusing  protection  to  to  particular  cases.     If  a  court  of 

illegal  works,  see  (5   Pctcrsdorff's  equity,   under  color  of  its  general 

Abridg.  560,  501,   and  an  article  in  authority,  is  to  enter  upon  all  the 

the   Quarterly  Review   for    April,  moral,  theological,  metaphysical  and 

1822.     This  doctrine  does  not  enter  political  inquiries,  which  in  the  past 

into  the  law  of  copyright  in  France,  times   have  given  rise  to  so  many 

All  works  are  equal  before  the  law,  controversies,  and  in  the  future  may 

without  reference  to  their  character,  well  be  supposed  to  provoke  many 

Renouard,  torn.  2,  p.  94.  heated  discussions,  and  if  it  is  to  de- 

'  "  The  soundness  of  this  gene-  cide  dogmatically  upon  the  charac- 

ral  principle,"    says    ^Ir.    Justice  ter  and  bearing  of  such  discussions, 


166  LAW    OF    COPYRIGHT. 

facie  the  copyright  confers  title  ;  and  the  burthen  is 
upon  the  other  side  to  show  clearly,  that  notwith- 
standing the  copy,  there  is  an  intrinsic  defect  in  the 
title.^ 

5.  Works  innocent  in  their  contents,  but  put  forth 
under  a  false  and  fraudulent  representation  as  to  their 
authorship. 

It  has  been  recently  held  in  England  that  there 
can  be  no  valid  and  subsisting  copyright,  in  a  book 
which  falsely  purports  to  have  been  written  by  an 
author  of  reputation,  and  which,  under  color  of 
such  a  representation,  seeks  to  impose  upon  the 
public.  The  plaintiff  published  a  book,  professing 
upon  its  title-page  to  be  a  translation  from  a  de- 
ceased German  author,  whose  works  had  been  trans- 
lated and  much  sought  for  in  England.  The  preface 
of  this  book  falsely  represented  it  to  be  the  work  of 
the  German  author,  when  in  reality  it  was  written 
and  composed  wholly  by  a  person  employed  and 
paid  by  the  plaintiff  for  the  purpose.  The  court 
distinguished  this  entirely  from  the  cases  of  works 

and  the  rights  of  authors,  growing  learned  and  pious  minds  have  been 

out  of  them;  it  is  obvious  that  an  greatly  divided,)  would  deem  any 

absolute  power    is  conferred    over  work  anti-ehristian,   which   should 

the   subject    of   literary    property,  profess  to  deny  that  point,  and  would 

which  may  sap  the  very  foundations  refuse  an  injunction  to  protect  it. 

on  which  it  rests,  and  retard,  if  not  So,  a  judge  who  should  be  a  Trini- 

entirely  suppress,  the  means  of  ar-  tarian,  might  most  conscientiously 

riving  at  physical  as  well  as  at  me-  decide  against  granting  an  injunc- 

taphysical  truths.     Thus,  for  exam-  tion  in  favor  of  an  author,  enforcing 

pie,  a  judge,  who  should  happen  to  Unitarian    views  ;     when    another 

believe,  that  the  immateriality  of  the  judge,  of  opposite  opinions,  might 

soul,  as  well  as  its  immortality,  was  not  hesitate  to  grant  it."     2  Story's 

a  doctrine  clearly  revealed    in  the  Eq.  Jurisp.  ^  9.38. 

Scriptures  (a  point  upon  which  very  i  2  Story  Eq.  Jurisp.  §  936,  n.  2. 


FALSE  PRETENCES  AS  TO  AUTHORSHIP. 


167 


published  under  a  fictitious  authorship,  in  which 
there  is  no  intent  to  deceive  or  defraud  the  public  ; 
and  held,  that  where  a  publisher  seeks  to  obtain  the 
money  of  the  public  by  a  pretence  that  his  book 
was  written  by  a  known  author,  the  transaction 
ranges  itself  under  the  head  of  crimen  falsi,  and  that 
he  cannot  have  a  valid  and  subsisting  copyright  in 
his  publication,  or  maintain  an  action  in  respect  of 
its  infringement.^ 


'  Wright  V.  Tallis,  1  Manning, 
Granger  &  Scott,  Com.  Bench  Rep. 
893.  In  this  case,  Lord  C.  J.  Tin- 
dal  said,  "  The  first  observation, 
therefore,  that  arises,  is,  that  the 
present  case  is  perfectly  distinguish- 
able from  those  which  have  been 
referred  to  at  the  bar,  of  books  of 
amusement  or  instruction  having 
been  published  as  translations,  whilst 
they  have  been,  in  fact,  original 
works  ;  or  having  been  published 
under  an  assumed,  instead  of  a  irue 
name.  Such  was  the  instance 
given  of  '  The  Castle  of  Otranto,' 
professing  to  be  translated  from 
the  Italian  ;  and  such  the  case  of 
innumerable  works  published  under 
assumed  names  —  voyages,  travels, 
biography,  works  of  fiction  or  ro- 
mance, and  even  works  of  science 
and  instruction  ;  for,  in  all  these  in- 
stances, the  misrcprcsentauon  is  in- 
nocent and  harmless.  There  is  not 
found,  in  any  one  of  those  cases, 
any  serious  design  on  the  part  of 
the  author  to  deceive  the  purchaser, 
or  to  make  gain  and  profit  from  him 
by  the  false  ■  representation  :  the 
purchaser,  from  anything  that  ap- 
pears to  the  contrary,  would  have 
purchased  at  the  same  price,  if  he 
had  known  that  the  name  of  the 
author  was  an  assumed,  and  not  a 
genuine  name  ;  or  had  known  that 


the  work  was  original  and  not  trans- 
lated. And,  indeed,  in  most  of  the 
cases  that  can  be  put,  the  statement 
is  not  calculated  in  its  nature  to  de- 
ceive any  one,  but  is  seen,  upon  the 
very  first  glance,  to  be  plainly  and 
manifestly  fictitious.  In  those  cases 
therefore,  it  was  perfectly  indilfer- 
ent  to  the  public,  whether  the  re- 
presentation was  true  or  not  ;  and  in 
all  probability,  the  book  would  have 
obtained  an  equal  sale,  whether  it 
was  a  translation  or  an  original, 
whether  the  name  of  the  author  was 
assumed  or  genuine. 

"But,  in  the  case  before  us,  no 
one  of  these  observations  will  apply. 
The  facts  stated  in  the  plea  imi>ort 
a  serious  design  on  the  part  of  the 
plaintiff  to  impose  on  the  creilulity 
of  each  purchaser  by  fixing  upon 
the  name  of  an  author  who  (once) 
had  a  real  existence,  and  who  pos- 
sessed a  large  share  of  weight  and 
estimation  in  the  opinion  of  the  pub- 
lic. The  object  of  the  plaintilf  is, 
not  merely  to  conceal  the  name  of 
the  genuine  author,  and  to  publish 
opinions  to  the  world  under  an  in- 
nocent disguise  ;  but  to  deceive  the 
public,  in  inducing  them  to  believe 
that  the  work  is  the  original  work  of 
the  author  whom  he  names,  when 
he  himself  knows  it  not  to  be  so,  to 
obtain  from  the  purchaser  a  greater 


168 


LAW    OF    COPYRIGHT. 


price  than  he  would  otherwise  ob- 
tain. The  transaction,  therefore, 
ranges  itself  under  the  head  of  cri- 
men falsi.  The  publisher  seeks  to 
obtain  money  under  false  pretences ; 
and  as  not  only  the  original  act  of 
publishing  the  work,  but  the  sale  of 
copies  to  each  individual  purchaser, 
falls  within  the  reach  of  the  same 
objection,  we  think  the  plaintiff  can- 
not be  considered  as  having  a  valid 
and  subsisting  copyright  in  the 
work,  the  sale  of  which  produces 
such  consequences,  or  that  he  is 
capable  of  maintaining  an  action  in 
respect  of  its  infringement. 

"  The  cases  in  which  a  copyright 


has  been  held  not  to  subsist  where 
the  work  is  subversive  of  good  or- 
der, morality,  or  religion,  do  not, 
indeed,  bear  directly  on  the  case 
before  us  ;  but  they  have  this  anal- 
ogy with  the  present  inquiry  —  that 
they  prove  that  the  rule  which  de- 
nies the  existence  of  copyright  in 
those  cases,  is  a  rule  established  for 
the  benefit  and  protection  of  the 
public.  And  we  think  the  best  pro- 
tection that  the  law  can  afford  to  the 
public  against  such  a  fraud  as  that 
laid  open  by  this  plea  is,  to  make 
the  practice  of  it  unprofitable  to  its 
author." 


CHAPTER   V. 

OF   THE   ORIGINALITY   NECESSARY  TO  A  VALID  COPY- 
RIGHT. 


The  party  wiio  comes  into  a  court  of  law  or 
equity,  seeking  protection  to  a  copyright,  must  be 
the  author  of  the  work,  or  must  derive  title  from  the 
author.  If  any  part  of  the  book  is  copied  or  adopted 
by  the  writer  from  a  preexisting  work,  of  course  the 
title  fails  quo  ad  hoc :  as  the  writer  cannot  have 
been  the  author  of  what  he  has  borrowed  from  an- 
other.'    Hence  it  may  become  a  grave  question,  to 


'  Tlie  statutes  both  in  England 
and  America  make  use  of  tiie  word 
Author,  which  ex  vi  termini  imports 
orioinality,  to  some  extent.  In 
France,  the  law  of  copyright  is 
founded  on  the  decree  of  July  19th, 
1793,  which  embraces  in  its  provis- 
ions "  Ics  auleurs  d'ecrits  en  (out 
genre."  Upon  this  expression,  M. 
Merlin  has  made  the  following  com- 
mentary, which  would  lose  in  a 
translation  the  fine  and  clear  dis- 
tinction between  the  terms  "  esprit" 
and  "genie." 

"  Mais  il  nc  faut  pas  s^'parer,  dans 
cet  article,  les  mots  icrils  en  lout 
genre,  de  I'expfession  aulnirs  ;  et  la 
propriety  dont  cet  article  declare 
que  les  errits  en  tout  <,nnre  sont 
susceptiblcs,  ne  pent  6vidcmmcnt 
etre  reclamde  que  par  ceux  qui  en 
sont  auleurs,  dans  la  veritable  ac- 
ception  de  ce  terme. 

15 


"  Or,  le  mot  auteurs,  quel  sens 
a-t-il  en  general?  Quel  sens  a-t-il 
relativenicnt  aux  ecrits?  Quel  sens 
a-t-il  dans  la  loi  du  19  juillel  1793? 

"  En  general,  le  mot  auleur  de- 
signe,  suivant  la  definition  qu'en 
donne  le  Dictionnaire  de  I'Acade- 
mie  fran§aise,  cehii  (jui  est  la  pre- 
miere cause  de  la  qvelijue  cho^c;  et  il 
est  aussi,  suivant  la  meme  definition, 
synonyme  A'invcnteur. 

"  Applique  aux  ecrits,  le  mot  au- 
tevr  se  dil  (loujours  suivant  le  nienie 
Dictionnaire)  de  celut  qui  a  ou/ijiose 
un  livrc,  qui  a  fait  quvlquts  uuvrnges 
d^xprit  en  vers  ou  en  prose ;  et  il  est 
bien  clair  qu'en  ce  sens,  le  mot  au- 
ttur  est  opp()s6  a  copiste. 

"  Enfin,  la  loi  du  19  juillct  1793 
ne  permit  pas  de  douter  qu'clle 
n'exclue  6calemcnt  les  copisies  de 
la  denomination  d'auteurs.  Les 
hinlicrs  de  I'autcur  d'un  outrage  de 


170  LAW    OF    COPYRIGHT. 

determine  in  a  particular  case  what  is  or  is  not 
original  on  the  part  of  the  writer  ;  or  in  other  words, 
whether  any  part  of  his  work  is  copied  or  adopted 
from  that  of  another. 

It  is  very  diflicult  to  lay  down  any  legal  definition 
of  originality  in  a  literary  composition,  that   may  be 
resorted  to  as  a  universal  test.     Many  intellectual 
productions  present  no    more  difficulty,   upon    the 
question  of  their  originality,  than  some  inventions  or 
discoveries.     The   poems   of  the   great  masters  in 
every  language,  and  a  vast  body  of  other  writings, 
however   freely  their   authors   may  have    used    the 
thoughts  of  others,  are  at  once  seen  to  be  just  as  ori- 
ginal in  a  legal  as  they  are  in  a  critical  sense.     But  \ 
in   every  species  of  composition,  in  all  literatures,   I 
there  is  of  necessity  a  constant  reproduction  of  what 
is  old,  mixed  with  more  or  less  that  is  new,  pecu-   j 
liar  and  original.     There  are   also   large   classes  of  f 

liltirature  ou   de  gravvre,  dit-elle,         "  Done,  les   expressions  d^eo'its 

art.  7,  ou  de  toute  autre  produc-  en  tout  genre,  ne   sunt  employees 

TioN  DE  l'esprit  OU  Du  GENIE,  (jui  dans  I'art.  l'"''  de  la  meme  loi,  que 

appartienl  aux  beaux-arts,  en  auront  pour  designer   tous   les   genres  de 

la  propriete   exclusive  pendant    dix  compositions  litt^raires. 
annees.     Ces  termes,   ou  de   toute        "  Done,  elles  n'y  d6signent  pas 

autre  production  de  fesprit  ou   du  les  Merits  qui  ne   seraient  pas  des 

genie,  qui  apparfient  aux  bconx-arls,  compositions,  mais  de  simples  cop- 

ne  sont  ni  obscurs  ni   equivoques,  ies. 

lis  significnt  clairemcnt  que  les  pro-         "  Done,  celui  qui  no  fait  que  cop- 

duclions  de  l'esprit  ou  du  gtnie  sont  ier  une  composition  litl6raire  ne  pent 

de  deux  sortes;  que  les  unes  con-  jamais  etre  r6put6  auteiirde  la  copie 

sistent  en  ouvrages  de  lituSrature  ;  de  cette  composition,  ni  par  consfe- 

que   les   autres    apparticnncnt   aux  quent  en  avoir  la  proprie/e,  dans  le 

beaux-arts;   mais  que  nul   ne  pent  sens  attach^'  a  ce  mot  par  la  loi  du 

etre  repute  auteur  soitd'un  ouvrage  19  juillet  1793  et  par  le  Code  p6nal 

de    litterature,    soit   d'un    ouvrage  1810." Meilin,     K<5pert()ire    de 

d'arts,  si  ce  n'est  pas  a.  son  esprit  Jurisprudence,    Tilre   Contrefa5on, 

ou  k  son   ginie  qu'en  est   due  la  (}  xi. 

production. 


ORIGINALITY.  171 

works,  the  materials  of  which  are  common  to  all 
writers,  existing  in  nature,  art,  science,  philology, 
history,  statistics,  &c.,  where  there  must  be  consid- 
erable resemblances,  however  independently  of  each 
other  the  different  authors  may  have  written.  Over 
this  vast  field,  it  is  impossible  to  erect  an  unvarying 
general  rule,  which  can  be  fitted  to  all  cases  and 
capable  of  determining  whether  a  particular  work 
exhibits  the  degree  of  originality  necessary  to  a  valid 
copyright.  The  laws  which-  protect  literary  pro- 
perty are  designed  for  every  species  of  composition, 
from  the  great  productions  of  genius,  that  are  to  de- 
light and  instruct  mankind  for  ages,  to  the  most 
humble  compilation  that  is  to  teach  children  the 
art  of  numbers  for  a  few  years,  and  then  to  disap- 
pear forever.  Hence  these  laws  must  be  so  ad- 
ministered, that  every  literary  laborer  shall  find  in 
them  an  adequate  protection  to  whatever  he  can 
show  to  be  the  product  of  his  own  labor.  So  nething 
he  must  show  to  have  been  produced  by  himself; 
whether  it  be  a  purely  original  thought  or  principle, 
unpublished  before,  or  a  new  combination  of  old 
thoughts  and  ideas  and  sentiments,  or  a  new  appli- 
cation or  use  of  known  and  common  materials,  or  a 
collection,  the  result  of  his  industry  and  skill. 
In  whatever  way  he  claims  the  exclusive  privilege 
accorded  by  these  laws,  he  must  show  something 
which  the  law  can  fix  upon  as  the  product  of  his 
and  not  another's  labors.  But  in  order  that  the  law 
should  do  this  ample  justice  to  the  great  variety  of 


172  LAW    OF    COPYRIGHT. 

claimants,  it  is  necessary  that  its  rules  should  be 
capable  of  adaptation  to  the  objects  of  their  labor. ^ 
They  must  include  in  their  range  everything  that 
can  be  justly  claimed  as  the  peculiar  product  of  indi- 
vidual efforts  ;  otherwise  they  would  exclude  from 
the  benefits  of  literary  property  objects  which  are  as 
clearly  the  products  of  individual  labor,  as  the  most 
original  thoughts  ever  written,  namely,  new  and  im- 
portant combinations  and  arrangements,  or  collec- 
tions of  materials  known  and  common  to  all  man- 
kind. 

It  is  therefore  of  some  importance  to  ascertain,  in 
the  first  place,  what  the  law  does  not  look  to,  in  ap- 
plying a  test  of  originality  to  a  literary  composition. 

1.  The  mere  utility  of  a  book,  or  its  adaptation  to 
the  end  which  it  professes  to  answer  —  its  value  in  a 
critical  point  of  view  —  cannot  determine  its  legal 
originality.  The  law  takes  upon  itself  none  of  the 
functions  of  the  critic,  in  this  sense.  It  looks  only 
for  some  substantial  product  of  individual  thought  or 
labor,  and  leaves  to  public  taste  or  judgment  to  de- 
termine its  value,  and  to  bestow  its  due  reward.  So 
that  whether  a  book  be  more  or  less  useful,  more  or 


'  "  The  rule  of  decision,"   said  merits,  and  the  reward  of  their  in- 

Lord  Mansfield,  in  Sayre  v.  Moore,  genuity  and  labor ;   the  other,  that 

1  East,  361,362,  note,  "is  a  matter  the  world  may  not  be  deprived  of 

of  great  consequence  to  the  country,  improvements,  nor  the   progress  of 

In  deciding  it  we  must  take  care  to  the  arts  be  retarded.     The  act  that 

guard  against  two  extremes  equally  secures  copyright  to  authors  guards 

prejudicial;    the   one,  that   men  of  against  the  piracy  of  the  words  and 

ability,    who  have   employed    their  sentiments  ;  but  it  does  not  prohibit 

time  for  the  service  of  the  communi-  writing  on  the  same  subject." 
ty,  may  not  be  deprived  of  their  just 


ORICINALITY.  173 

less  successful,  or  brilliant,  or  important,  if  in  a  just 
sense  the  claimant  is  the  author  of  that  in  which  he 
claims  an  exclusive  property,  he  is  entitled  to  his 
copyright  valcre,  quantum  valere  potest.^  It  is  true, 
there  may  be  cases,  in  which  the  question  will  arise, 
whether  a  subsequent  author  has  made  any  improve- 
ments upon  his  predecessors  ;  and  in  such  cases  it 
may  become  necessary  to  apply  collaterally,  as  a  test 
of  originality,  an  inquiry  into  the  practical  and  rela- 
tive value  of  his  publication.  But  this  will  be  done, 
in  order  to  determine  whether  he  has  borrowed  any, 
and  how  great  a  part  of  his  matter  from  sources  com- 
mon to  all  writers  —  whether  he  has  actually  pro- 
duced anything  of  his  own,  and  not  whether  his  pro- 
duction is  better  or  worse  than  the  productions  of 
others.  If  it  appears  that  he  has  produced  anything 
of  his  own,  not  borrowed  or  adopted  from  a  previous 
writer,  its  effect  in  advancing  or  retarding  the  pro- 
gress of  knowledge,  or  its  value  in  a  critical  point  of 
view,  can  have  no  influence  upon  his  title  to  a  copy- 
right. 

2.  The  law  does  not  require  that  the  subject  of  a 
book  should  be  new,  or  that  the  materials  of  which 
it  is  composed  should  be  original ;  but  there  may  be 
a  valid  copyright  in  the  book  itself,  though  the  sub- 
ject and  the  materials  are  common  to  all  wi'iters. 
In  all  such  cases,  the  true  inquiry  is,  whether  the 
claimant's   book    contains    any  substantive   product 


'  Emerson  r.  Davics,  3  Story's  R.  768. 

15* 


174  LAW    OF    COPYRIGHT. 

of  his  own  labor  ?  If  so,  the  law  declares  it  enti- 
tled to  the  protection  of  a  copyright.  Thus,  if  a 
person  collects  an  account  of  natural  curiosities,  or 
of  works  of  art,  or  of  mere  matters  of  statistical  or 
geographical  information,  and  employs  the  labor  of 
his  mind  in  giving  a  description  of  them,  his  own 
description  may  be  the  subject  of  copyright.  It  is 
equally  competent  to  any  other  person  to  compile 
and  publish  a  similar  work.  But  it  must  be  made 
substantially  new  and  original,  like  the  first  work, 
by  resort  to  the  original  sources,  and  must  not  copy 
or  adopt  from  the  other,  upon  the  notion  that  the 
subject  is  common.^ 

There  have  been  several  cases,  upon  works  of 
different  kinds,  which  have  recognized  and  estab- 
lished this  principle.  One  of  the  earliest  of  this 
class  of  cases  is  that  concerning  Road  Books  or 
Itineraries. 

There  was  formerly  an  old  work,  called  Patteis- 
son's  Road  Book,  published  in  England,  from  1771 
to  1796.  In  1797,  one  Gary  was  employed  by  the 
postmaster-general  to  make  an  actual  survey  of  the 
roads,  and  the  book  published  by  him  contained 
many  material  corrections  of  and  additions  to  the 
last  edition  of  the  original  work  by  Patterson.  Sub- 
sequently, a  book  was  published  purporting  to  be 
founded  on  Patterson's,  but  in  reality,  as  was  alleged, 
copied  from  the  improved  work  of  Gary,  with  some 

•  Hogg  V.  Kirby,  8  Ves.  215,  221 . 


ORIGINALITY.  175 

colorable  alterations.  Gary  applied  to  Lord  Chan- 
cellor Loughborough  for  an  injunction  against  the 
latter  publication,  in  1799  ;  but  his  lordship  refused 
to  make  an  order,  thinking  that  the  two  books  were 
very  unlike.^  Two  years  afterwards,  Gary  brought 
an  action  in  the  court  of  king's  bench,  for  piracy, 
against  the  publishers  of  the  same  or  a  similar  book, 
which  purported  to  be  the  twelfth  edition  of  Patter- 
son's, but  containing  also  nine-tenths  of  Gary's  im- 
provements. The  defendant's  counsel  contended 
that  Gary  could  not  be  considered  as  the  author  of 
the  bookj  within  the  meaning  of  the  statute,  the 
greater  part  of  it  having  been  published  before  by 
another  person.  Lord  Kenyon,  G.  J.,  said,  "  Cer- 
tainly the  plaintiff  had  no  title  on  which  he  could 
found  an  action  to  that  part  of  his  book  which  he 
had  taken  from  Mr.  Patterson's  ;  but  it  is  as  clear 
that  he  had  a  right  to  his  own  additions  and  abbre- 
viations, many  of  which  were  material  and  valuable  ; 
and  the  defendants  are  answerable  at  least  for  copy- 
ing those  parts  in  their  book.  The  courts  of  justice 
have  been  long  laboring  under  an  error,  if  an  author 
has  no  copyright  in  any  part  of  a  work,  unless  he 
have  an  exclusive  right  to  the  whole  book."  - 

So,  in  the  case  of  a  work  called  The  Gourt  Galen- 

'  Cary  v.  Fadcn,  5  Ves.  21.  being  different,  it   is  probable  that 

*  Cary  v.  Longman,  1  East,  358,  the  works  were  different.     But  the 

360.     It  is  not  apparent  whether  the  principle   involved    was   the   same, 

book  complained  of  in  this  case  was  and  ii  is  surprising  tliat  Lord  Louijli- 

or  was  not  the  same  as  in  ihe  case  borough  should  have  summarily  dis- 

of  Cary  i'.  Faden  {ante)  before  Lord  posed  of  it  in   the  few  words  re- 

Loughborough.      The     defendants  ported  in  5  Ves.  26. 


176 


LAW    OF    COPYRIGHT. 


dar,  Lord  Eldon  held  that  although  the  subject  was 
open,  no  man  could  on  that  account  be  justified  in 
sparing  himself  the  labor  and  expense  of  collecting 
the  original  information  and  copying  the  work  pre- 
viously published  by  another.^  So  also  Lord  Erskine 
C.  held,  although  the  East  India  Calendar  could  not 
be  a  subject  of  copyright,  yet,  that  if  a  man  from 
his  situation  having  access  to  the  repositories  in  the 
India  house,  has  by  considerable  expense  and  labor 
procured  with  correctness  all  the  names  and  appoint- 
ments on  the  India  establishment,  he  has  a  copy- 
right in  that  individual  work.^ 

The  same  principle  was  also  applied  to  a  work  on 
the  Antiquities  of  Greece,  containing  prints  taken 
from  drawings  made  by  the  plaintiff;^  and  in  like 


'  Longman  v.  Winchester,  16 
Ves.  269.  In  this  case,  Lord  Eldon 
said,  "I  cannot  go  the  length  of 
staling  the  proposition,  that  oopy- 
risht  cannot  suhsist  in  a  work  of 
this  descii|)tion :  nor  would  I  dis- 
turb the  injunction  upon  that  ground 
wiUiout  putting  them  to  a  trial. 
Assuming,  that  there  may  be  a 
copyright,  there  is  not  much  diffi- 
culty in  the  rest  of  the  case.  Take 
the  instance  of  a  map,  describing  a 
particular  county  ;  and  a  map  of  the 
same  county,  afterwards  published 
by  another  person  :  if  the  descrip- 
tion is  accurate  in  both,  they  must 
be  pretiy  much  the  snme :  but  it  is 
clear,  the  latter  publisher  cannot  on 
that  account  be  justified  in  sparing 
himself  the  labor  and  expense  of 
actual  survey,  and  copying  tliemap, 
previously  published  by  another. 
So  as  to  Patterson's  Road  Piook,  it 
is  certainly  competent  to  any  other 


man  to  publish  a  hook  of  roads  ;  and 
if  the  same  skill,  intelligence  and 
diligence,  are  applied  in  the  second 
instance,  the  public  would  receive 
nearly  the  same  information  from 
both  works:  but  there  is  no  doubt 
that  this  court  would  interpose  to 
prevent  a  mere  re-publication  of  a 
work,  which  the  labor  and  skill  of 
another  person  had  supplied  to  the 
world.  So  in  the  instance,  men- 
tioned by  Sir  Samuel  Eomilly,  a 
work,  consisting  of  a  selection  from 
various  authors,  two  men  perhaps 
might  make  the  same  selection  :  but 
that  must  be  by  resorting  to  the 
original  authors,  not  by  taking  ad- 
vantage of  the  selection  already 
made  by  another." 

'■^  Matihewson  v.  Stockdale,  12 
Ves.  270. 

=>  Wilkins  v.  Aikin,  17  Ves.  422. 
See  also  Sayre  v.  Moore,  1  East, 
361,  note,  with  reference  to  charts. 


ORIGINALITY. 


1' 


manner,  a  person  may  have  copyright  in  mathemat- 
ical tables  actually  calculated  by  himself,  although, 
on  a  fresh  calculation  the  same  tables  would  result 
from  the  same  data  and  the  same  principles,  and 
although  they  may  have  previously  been  published 
before  his  appeared.^ 

3.  A  book  may  also  be  original,  in  the  sense  of 
the  law,  although  the  materials  of  which  it  is  com- 
posed, the  hints  and  sources  from  which  its  matter 
M^as  derived,  can  all  be  traced  out  in  former  works, 
provided  the  author  has  exercised  selection,  arrange- 
ment and  combination,  and  has  thereby  produced 
anything  new."     In  a  scientific  treatise,  to  be  used 


Wyntt  r.  Barnard,  3  Yes.  &  B.  77, 
with  reference  to  spocificntions  of 
patents  copied  from  the  public  office. 

'  Bailey  v.  Taylor,  3  Law  Journ. 
6fi. 

"  The  following  rloqiifnt  descrip- 
tion of  nriflfinal  authorship  is  from 
an  prg-nment  by  AL  Merlin  before 
the  Court  of  Cassation.  "Sans 
donte,  il  est  des  compilations  d'ouv- 
rages  litt6raires  qui,  jiar  rimmen- 
sit6  des  rechevches  qu'elles  suppn- 
sent,  par  le  discernement  et  Ic  gout 
qu'elles  exigent,  penvent  ct  doivent 
passer  pour  de  Y6rif,il)lcs  produc- 
tions de  I'esprit,  ct  qu'il  n'est  pas 
plus  permis  de  contrcfaire  que  si 
elles  etaient  reellemcut  des  compo- 
sitions originalcs. 

"  Par  exemple,  les  Pandcdcs  de 
Pothier  ne  sont,  a  pcu  de  chose  pres, 
qu'une  compilation  des  Institutes, 
du  Pigcste,  du  Code  et  des  Novclles 
de  Justinien ;  c'cst-a-dire,  de  re- 
cueils  qui,  depuis  j)liisieurs  sieclcs, 
sont  incontestablement  dans  Ic  do- 
maine  du  public. 


"  Cependant,  si  Pothier  vivait  en- 
core, el  qu'iin  imprimeur  s"avisat 
de  publier  une  Edition  de  ses  Pan- 
dectes,  sans  sa  permission,  qui  cst-ce 
qui  oserait  contester  k  Potliicr  le 
droit  de  le  poursuivre  ctmimr  con- 
trefactei.r'?  Qui  est-ce  qui  (.serait 
dire  que  Pothier,  en  compilant  a  sa 
manier  ;  les  Institutes,  le  Diiji-.-te, 
le  Code  ct  les  Novellcsde  Justinien, 
n'a  pas  fait  un  ouvrage  qu"il  n'ap- 
partenait  qu'a  un  jurisconsulte  du 
premier  ordre  d'entreprendre  et 
d'achcver?  Qui  est-cc  qui  oserait 
dire  qu'un  simple  copiste  eut  pu, 
comme  lui,  tirer  tous  les  textes  du 
droit  remain  de  Tespece  de  chaos 
dans  le(iuel  ils  sont  disperses ;  les 
ranker  dans  un  vaste  cadre  oti.  en- 
chaines  les  uns  aux  autres,  ils  s'ex- 
pliquent  mutuellemeiit ;  rappiocher 
de  chaque  regie  gent  rale  toutes  les 
exceptions  qui  la  limitent ;  placer  k 
cote  de  la  loi  ancienne,  la  loi  mod- 
erne  qui  la  modific  ;  ct  la  loi  plus 
modcrne  encore  qui  rabrope  ;  en  un 
mot,  substituer  Tordre  k  la  confu- 


178  LAW    OF    COPYRIGHT. 

for  example  for  purposes  of  instruction,  the  author 
who  takes  existing  materials  from  sources  common 
to  all  writers,  an*d  arranges  and  combines  them  in  a 
form  and  gives  them  an  application  unknown  before, 
is  protected  in  the  exclusive  enjoyment  of  what  he 
has  thus  collected  and  produced,  in  that  particular 
form.  In  like  manner,  an  author  who  takes,  from 
the  hints  and  suggestions  of  objects  in  nature  or 
art,  or  from  the  ideas  and  methods  to  be  found  in 
other  books,  the  materials  of  a  method  of  illustra- 
tion, and  gives  to  them  a  new  application,  or  a  new 
use,  or  uses  them  in  a  new  form,  produces  something 
which  the  law  recognizes  and  protects  as  original. 
This  doctrine  has  been  elaborately  expounded,  in 
two  modern  cases. 

Thus,  where  an  editor  of  a  modern  edition  of 
Adam's  Latin  Grammar  had  made  many  improve- 
ments and  additions,  and  had  compiled  many  ne  v 
notes  to  the  old  work,  although  the  elemental  mate- 
rials of  his  improvements  and  additions  and  the  sub- 
stance of  his  notes  could  more  or  less  be  traced  to 
other  and  various  sources   in  other  works,  yet  Mr. 


sion,  la  Inmi^re  i  I'obscurit^,  la  fa-  riaux  pour  Clever  un  siipcrbe  palais, 

cilil6  d'6tudier  et  d'apprendre  aux  un  temple  majestueux. 
dugouts  et  aux  Opines  qui  arretent,         "Mais  il  est  aussi  des  compila- 

dt'-s  leurs  premiers  pas,  tous  les  as-  tions  qui  se  font,  comme   on   le  dit 

pirants  k  I'exacte  connaissance  des  vuliraircmcnt,  avec  des  ciseaux,  qui 

lois  romaines?  n'exigent  qu'un  travail   de  manoeu- 

"  Compiler  de  cette  maniere,  ce  vre,  et  qui,  pour  cettc  raison,  ne 

n'est  pas  copier,  c'est  crter  ;  c'est  peuvent  pas  mtriter  k  leurs  artisans 

faire  ce  que  ferait  un  architecte  qui,  le   litre   d'auteurs."     Merlin,  Rep. 

apr^s  avoir  d6moli  un  Edifice  goth-  de  Jurisp.  title  Contrefagon,  6xi. 
ique,  en  emploierait  tous  les  mat6- 


ORIGTNAT.TTY. 


179 


Justice  Story  held  the  editor  entitled  to  copyright  in 
the  matter  of  his  own  edition,  because  it  had  never 
been  before  collected   and  embodied  in  a  former  sin- 


gle work.' 


'  Gray  v.  Russell,  1  Story's  R. 
11.  In  this  casG  llie  court  said, 
"The  arsTuinent  proceeds  mainly 
upon  this  ff  roil  ml,  that  there  is 
nothincr  subsiantiaily  new  in  Mr. 
Gould's  notes  to  iiis  edition  of  Ad- 
am's Latin  Grammar  ;  and  that  all 
his  notes  in  suhstincc.  and  many  of 
them  in  form,  may  bo  found  in  other 
works  antecedently  printed.  That 
is  not  the  true  question  before  the 
court.  The  true  cpiestion  is,  whether 
these  notes  are  to  be  found  collected 
and  embodied  in  any  firmer  siii?le 
work.  It  is  admitted,  tint  thov  are 
notso  to  be  found.  The  most,  that  is 
contended  for,  is,  thai  Mr.  (ionld  has 
selected  his  notes  from  very  various 
authors,  who  have  written  at  dilVer- 
ent  periods,  and  that  any  other  jier- 
son  mi^ht,  by  a  diligent  cxatuina- 
tion  of  the  same  works,  liave  made 
a  similar  selection.  It  is  not  pre- 
tended, that  Mr.  Cleveland  under- 
took or  accomplished  such  a  task  by 
such  a  selection  from  the  original 
authors.  Indeed,  it  is  too  plain  for 
doubt,  that  he  has  borrowed  the 
whole  of  his  notes  directly  from  'Sir. 
Gould's  work  ;  and  so  literal  has 
been  his  transcription,  that  he  has 
incorporated  the  very  errors  thereof. 

"  Now, certainly,  the  preparation 
and  collection  of  these  notes  from 
these  various  sources,  must  have 
been  a  work  of  no  small  labor,  and 
intellectual  exertion.  The  plan, 
the  arranjjenient,  and  the  combina- 
tion of  these  notes  in  the  form  in 
which  they  are  collectively  exhibit- 
ed in  (lould's  Grammar,  belonu  ex- 
clusivtdy  to  this  ircntloman.  lie  is, 
then,  justly  to  be  deemed  the  author 


of  them  in  their  actual  form  and 
combination,  and  entitled  to  a  copy- 
right accordin<rly.  If  no  work  could 
be  considercil  by  our  law  as  entitled 
to  the  privilege  of  copyri^'ht,  which 
is  composed  of  materials  drawn 
frotn  many  different  sources,  but  for 
the  first  time  brought  together  in  the 
same  plan  and  arrangement  and 
combination,  simply  because  those 
materials  might  be  found  scattered 
up  and  down  in  a  great  variety  of 
volumes,  perhaps  in  himdreds,  or 
even  thousands  of  volumes,  and 
might,  therefore,  have  been  brought 
together  in  the  same  way  and  by 
the  same  researches  of  another 
mind,  equally  skilful  and  equally 
diligent,  —  then,  indeed,  it  would 
be  difficult  to  say,  that  there  C(udd 
be  any  copyright  in  most  of  the  sci- 
entific and  professional  treatises  of 
the  present  day.  What  would  be- 
come of  the  elaborate  commentaries 
of  modern  srdiolars  upon  the  clas- 
sics, which,  for  the  most  part,  con- 
sist of  selections  from  the  works  and 
criticisms  of  various  former  authors, 
airanged  in  a  new  form,  and  com- 
bined together  by  new  illustrations, 
intermixed  with  them  !  What  would 
become  of  the  modern  treatises  upon 
astronomy,  mathematics,  natural 
philosophy,  and  chemistry?  What 
would  become  of  the  treatises  in 
our  own  profession,  the  materials 
of  which,  if  the  works  he  of  any 
real  value,  must  essentially  depend 
upon  faithful  abstracts  from  the  Re- 
ports, and  from  juridical  treatises, 
with  illustrations  tif  their  hearing. 
Black^tone's  Commentaries  is  hut  a 
compilation  of  the  Laws  of  Ensjluid, 


180 


LAW    OF    COPYRIGHT. 


So,  where  the  plaintiff,  the  author  of  an  arithmetic, 
designed  to  teach  children  the  elements  of  that 
science,  claimed  a  peculiar  plan  of  lessons  and  me- 
thod of  illustration,  as  his  own  invention,  and  it  was 
alleged  by  the  defendant,  and  partially  proved,  that 
some  of  the  different  parts  and  elements  of  his  plan 
and  method  had  been  in  use  before,  and  that  the 
materials  of  his  book  were  to  be  found  in  many  differ- 
ent works  ;  the  same  learned  judge  held  that  as  the 
same  plan,  arrangement,  and  combination  of  mate- 
rials had  never  been  used  before  for  the  same  or  any 
other  purpose,  the  plaintiff  was  entitled  to  a  copy- 
right.^    In   this   case,  the  subject  of  the  copyright 


drawn  from  authentic  sources,  open 
to  ihe  whole  profession  ;  and  yet  it 
was  never  dreamed,  thnt  it  was  not 
a  work,  which,  in  the  hijihest  senile, 
might  be  deemed  an  orioin^l  work  ; 
since  never  before  were  the  same 
materials  so  admirably  combined, 
and  exquisitely  wroug-ht  out,  wuh  a 
judsrment,  skill,  and  taste  absolutely 
unrivalled.  "^I'ake  the  case  of  the 
work  on  insurance,  written  by  one 
of  the  learned  counsel  in  this  cause, 
and  to  which  the  whole  profession 
are  so  much  indebted;  it  is  but  a 
compilation  with  occasional  com- 
ments npon  all  the  leading  doctrines 
of  thai  branch  of  the  law,  drawn 
from  reporicd  cases,  or  from  former 
autbiirs;  but  cnmbined  together  in  a 
new  form,  and  in  a  new  plan  and  ar- 
ran?ement;  yet  I  presume,  none  of 
us  ever  doubted,  that  he  was  fully 
entitled  to  a  copyright  in  the  work, 
as  being  truly,  in  a  just  sense,  his 
own." 

,,_LJFjTiersoTiLiiJpavies,  3  Story's  R. 

JT^RT'TrrTTiiscas'e'^  the-  court  said, 

"  The  book  of  the  plaintiff  is  in  my 


judgment,  new  and  original,  in  the 
sense  in  which  these  words  are 
to  be  understood  in  cases  of  copy- 
right. The  question  is  not,  whether 
the  materials  which  are  used  are 
entirely  new,  and  have  never  been 
used  before  ;  or  even  that  they  have 
never  been  used  before  for  the  same 
purpose.  The  true  questi(m  is, 
whether  the  same  plan,  arrange- 
ment and  combination  of  materials 
have  been  used  before  for  the  same 
purpose  or  for  any  other  purpose. 
Jf  they  have  not,  then  the  plaintiff 
is  entitled  to  a  copyright,  although 
he  may  have  gathered  hints  for  his 
plan  and  arrangement,  or  parts  of  his 
plan  and  arrangement,  from  existing 
and  known  sources.  He  may  have 
borrowed  much  of  his  materials  from 
others,  but  if  tliey  are  combined  in 
a  different  manner  from  what  was 
in  use  before,  and  a  forliori,  if  his 
plan  and  arrangement  are  real  im- 
provements upon  the  existing  modes, 
he  is  entitled  to  a  copy-righl  in  the 
book  embodying  such  improvement. 
(See  Lewis  v.  FuUerton,  2  Beav.  R. 


ORICINALITY. 


181 


was  not  ill  the  subject  or  in  the  materials,  but  in  the 
{)hHi,   arrangement,   and   combination,    which    were 


6.)  It  is  true,  that  he  does  not 
thereby  acquire  the  ri^lit  to  appro- 
priate to  himself  the  materials  which 
were  common  to  all  persons  before, 
so  as  to  exclucie  liiose  persons  from 
a  future  use  of  such  materials  ;  but 
then  they  have  no  riffht  to  use  such 
materials  with  his  improvetiieiits 
superadded,  whether  they  consist  in 
plan,  arrangement  or  illustrations, 
or  combinations;  for  these  are  strict- 

rly  his  own.  A  man  who  constructs 
a  new  machine,  is  entitled  to  a 
patent  therefor,  if  the  coml)ination 
and  arrangements  thereof  are  new 
and  his  own  invention,  although  he 
uses  old  materials  and  old  mechani- 
cal ajjparatiis  and  powers  in  con- 
structing such  machine.  He  may 
use  wheels,  or  levers,  or  screws,  or 
toggle-joints,  or  cranks,  or  any  other 
known  modes  of  accomplishing  given 
mechanical  ends,  if  he  combines 
them  in  a  new  manner,  and  thus 
produces  a  beneficial  rtsult.  The 
steam-engine,  the  steam-hoat,  the 
cut-nail  machine,  the  card  machine, 
are  all  but  new  combinations  of  old 
materials,  old  processes,  and  old  me- 
chanical powers  and  apparatus. 

"  In  truth,  in  literature,  in  science 
and  in  art,  there  are,  and  can  be, 
few,  if  any,  things,  which,  in  an  ab- 
stract sense,  are  strictly  new  and 
original  throughout.  Every  book 
in  literature,  science  and  art,  bor- 
rows, and  must  necessarily  borrow, 
and  use  much  which  was  well  known 
and  used  before.  No  man  creates  a 
new  langua<Te  for  himself,  at  least  if 
he  be  a  wise  man,  in  writing  a  book. 
He  contents  himself  with  the  use  of 
lansiuage  already  known  and  used 
and  understood  bv  others.  No  man 
writes  exclusively  from  his  own 
thougiits,  unaided  and  uninstructcd 
by  the  thoughts  of  others.  The 
16 


thoughts  of  every  man  are,  more  or 
less,  a  combination  of  what  other 
men  have  thought  and  expressed, 
although  they  may  be  modified,  ex- 
alted, or  improved  by  his  own  gen- 
ius or  reflection.  If  no  book  could 
be  the  subject  of  copyright  which 
.was  not  new  and  oriu'inal  in  the 
elements  of  which  it  is  composed, 
there  could  be  no  ground  (or  any 
copyrighi  in  modern  times,  and  we 
should  be  obliged  to  ascend  very 
high,  even  in  antiquity,  to  find  a 
work  entitled  to  such  eminence, 
Virgil  borrowed  much  trom  Homer; 
Bacon  drew  from  earlier  as  well  as 
contemporary  minds  ;  (Joke  exhaust- 
ed all  the  known  learning  of  his  pro- 
fession ;  and  even  Shakspeare  and 
Milton,  so  justly  and  proudly  our 
boast,  as  the  brightest  originals, 
would  be  found  to  have  gathered 
much  from  the  abundant  stores  of 
current  knowledge  and  classical 
studies  in  their  days.  What  is  La 
Place "s  great  work,  but  the  combi- 
nation of  the  processes  and  discove- 
ries of  the  great  maihematicians 
before  his  day.  with  his  own  ex- 
traordinary genius?  What  are  all 
modern  law  books,  but  new  com- 
binations and  arrangements  of  old 
materials,  in  which  the  skill  and 
judgment  of  the  author  in  the  selec- 
tion and  exposition  and  accurate  use 
of  those  materials,  constitute  the 
basis  of  liis  reputation,  as  well  as  of 
his  copyright  I  Hlackstone's  Com- 
nientarits  and  Kent's  Commentaries 
are  but  splendid  examples  of  the  mer- 
it and  value  of  such  achievements. 

"  In  truth,  every  auThor  of  a  TJool 
has  a  copyright  in  the  plan,  arrange- 
ment and  combination  o{  his  materi- 
als, and  in  his  mode  of  iliu.-trating 
his  subject,  if  it  be  new  and  original 
in  its  substance.     Sir  John  Leach, 


182 


LAW    OF    COPYRIGHT. 


ori,^inal  and  peculiar.     So,  also,  in  the  case  of  a  work 
called  "  The  Topographical  Dictionary  of  England," 


in   Barfield  v.  Nicliolson,    (2  Sim. 
and  S?tu.  1,  6.)  recognized  this  doc- 
trine in  its  fullest  extent;  and  there 
stated,  that  a  copyrio-ht  mig-ht  well 
be  taken  where  tlic  composition  is 
either  nmv,  or  there  is  a  new   ar- 
ransement  thereof.     Nay,  the  risht 
to  :i  copyri^jht  poes   much  farther. 
A  man  has  a  riL'ht  to  a  copyright 
in  a  translation,  upon  which  he  has 
bestowed  his  time  and   labor.     To 
be  sure,  anoiher  man  has  an  equal 
right  to  translate  the  oritrinal  work, 
and  to  publish  his  translation  ;   but 
then  it  must  be  his  own   translatidn 
by  his  own  skill  and  labor  ;  and  not 
the  mere  use  and  publication  of  the 
translation  already  made  by  another. 
(Wyatt  V.  Barnard,  3  Ves  &  Heam. 
77.)    A  man  has  a  right  to  the  copy- 
right of  a  map  of  a  state  or  country, 
which  he  has  surveyed  or  caused  to 
be  compiled  from  existing  materials, 
at   his   own    expense,   or   skill,   or 
labor,  or  money.    Another  man  may 
publish  another   map   of  the  same 
state  or  country,  by  using  the   like 
means   or   materials,   and   the   like 
skill,  labor  and  expense      But  then 
he  has  no  right   to  publi.sh  a  map 
taken   substantially  and  designedly 
from  the  map  of  the  other  per-son, 
without  any  such  exercise  of  skill, 
or  labor,  or  expense.     If  he  copies 
substantially  from  the  map  of  the 
other,  it   is  downright   piracy ;    al- 
though it   is  plain   that  both  maps 
must,  the  more  accurate  they  are, 
approach  nearer  in  design  and  exe- 
cution to  each  other.     (Matthcwson 
V.    Stockdale,   12  Yes.  270  ;    Wil- 
kins  V.  Aiken,   17  V^s    422.)     He, 
in  short,  who  by  his  own  skill,  judg- 
ment and  labor,  writes  a  new  work, 
and   does  not  merely  copy  that  of 
another,  is   entitled  to  a  copyright 
therein ;   if  the  variations  are   not 


merely  formal  and  shadowy,  from 
existing  works.  He,  who  instructs 
by  a  new  plan,  and  arrangement, 
and  combination  ot  old  materials,  in 
a  book  designed  for  instruction,  ei- 
ther of  the  young,  or  the  old,  has  a 
title  to  a  copyright,  which  cannot 
be  displaced  by  showint;  that  some 
part  of  his  plan,  or  arrangement  or 
combination,  has  been  used  before. 

"The  case  of  Gray  v.  Russell, 
(1  Story  }{.  11,)  affords  a  strong 
illustration  of  the  doctrine,  as  that 
was  a  case  confessedly  of  a  mere 
improvement  of  an  »dd  work,  Ad- 
am's Latin  Grammar,  a  si.bject 
that  had  been  di.-cus^ed  and  treated 
in  many  hundred  works,  and  in 
which  little  more  could  be  done 
than  to  arrange  the  materials  upon 
a  new  plan,  or  in  a  new  combina- 
tion, with  additional  illustrations 
and  initial  remarks.  Yet  the  ("ourt 
held  it  dearly  to  be  the  subject  of  a 
copyright  ;  and  from  the  doctrine 
therein  stated  I  feel  not  the  slighte,=;t 
inclination  to  depart.  It  was  upon 
the  like  ground  that  an  action  has 
been  held  to  lie  for  the  recovery  of 
damages  for  pirating  the  new  cor- 
rections and  additions  to  an  old 
work,  (the  Itinerancy  of  England.) 
Upon  that  occasion.  Lord  Kenyon 
said  :  '  The  courts  of  justice  have 
been  long  laboring  under  an  error, 
if  an  author  have  no  cojjyriglit  in 
any  part  of  a  book,  unless  he  liave 
an  exclusive  right  to  the  whole 
book.'  (See  also  Trusler  v.  Mur- 
ray, and  Tonson  v.  Walker,  cited  in 
1  East,  300,  361,  and  notes.)  An- 
other illustration  may  be  found  in 
the  cases  of  histories  and  dictiona- 
ries, as  stated  by  Lord  Mansfield  in 
Sayre  v.  Moore,  (1  East  H.  361, 
note.)  '  In  the  first,  a  man  may 
give  a  relation  of  the  same  facts, 


ORIGINALITY. 


183 


consisting  partly  of  compilations  and  selections  from 
former  works,  and  partly  of  original   compositions, 


and  in  the  same  order  of  time  ;  in 
the  hitter,  an  interprotiition  is  given 
of  the  identical  same  witrds.  But 
he  must  not  servilely  copy  the  words 
of  another  on  either  suhject.  An 
author  has  as  much  rit'lit  in  his 
plan,  and  in  his  arraiigemcnts,  and 
in  the  combination  of  his  maieiials, 
as  he  has  in  his  thoughts,  senti- 
ments, opinions,  and  in  his  modes 
of  expressinfj  them.  The  former  as 
well  as  the  latter  may  be  more  use- 
ful or  less  useful  than  those  of  an- 
other author;  but  that,  alihoush  it 
may  diminish  or  imtna-se  the  rela- 
tive values  of  their  \vorl(s  in  the 
market,  is  no  ground  to  eniitle  either 
to  appropriate  to  himsdf  the  labor 
or  skill  of  the  other,  as  embodied  in 
his  own  work.' 

"  It  is  a  great  mistake  to  suppose, 
because  ail  the  materiais  of  a  work 
or  some  pans  of  its  plan  and  ar- 
rangements and  modes  of  illustra- 
tion, may  be  found  separately,  or  in 
a  different  form,  or  in  a  different 
arrangement,  in  other  disiuict  works, 
that  therefore,  if  the  plan  or  arrange- 
ment or  combination  of  these  mate- 
rials in  another  work  is  new,  or  for 
the  first  time  made,  the  author,  or 
compiler,  or  framer  of  it,  (call  him 
which  you  please,)  is  not  entitled  to 
a  copyright.  The  reverse  is  the 
truth  in  law,  and,  as  I  think,  in 
common  sense  also.  It  is  not,  for 
example,  in  the  present  case,  of  any 
importance  that  the  illustrating  of 
lessons  in  Arithmetic  by  attaching 
unit  marks  representing  the  num- 
bers embraced  in  the  example,  may 
be  found  by  dots  in  Wallis's  Opera 
Mathemaiioa,  (p.  28)  or  in  Col- 
burn's  Arithmetic  m  the  form  of 
upright  linear  marks,  in  a  pamphlet 
detached  from  the  main  work.  Tiiat 
is  not  what  the  plaintiff  purports  to 


found  his  copyright  upon.  He 
does  not  claim  the  first  use  or  in- 
vention of  unit  marks  for  the  pur- 
pose above-mentioned.  The  use  of 
these  is  a  part  of  and  included  in 
his  plan  ;  but  it  is  not  the  whole  of 
his  plan.  What  he  dues  claim  is, 
.1.  The  plan  of  the  lessons  in  his 
book;  2.  The  execution  of  that 
plan  in  a  certain  arrangement  of  a 
set  of  tables  in  the  form  of  lessons 
to  illustrate  those  lessons  ;  3.  Ihe 
gradation  of  examples  to  precede 
each  table  in  sucli  manner  as  to 
form  with  the  table  a  peculiar  and 
symmetrical  appearance  of  each 
page  ;  4.  The  illustration  of  his 
lessons  by  attaching  to  each  exam- 
ple unit  marks  representing  the 
numbers  embraced  in  the  example. 
It  is,  therefore,  this  method  of  illus- 
tration in  the  ai.'grcgate  that  he 
claims  as  his  invention,  each  page 
constituting  of  itstU"  a  complete  les- 
son ;  and  he  alleges  that  the  de- 
fendants have  adopted  the  same 
plan,  arrangement,  tables,  grada- 
tion of  examples  and  illustrations  by 
unit  marks,  in  the  sauie  pate,  in 
imitation  of  the  plamiiff's  book,  and 
in  infringement  of  his  f0|)y right, 
and,  in  confirmation  of  this  state- 
ment, he  rel'ers  to  divers  pages  of 
his  own  book  in  comparison  with 
divers  pages  of  the  book  of  the  de- 
fendants. Now.  1  say  that  it  is 
wholly  immaterial  whether  each  of 
these  particulars,  the  arrangement 
of  the  tables  and  forms  of  the  les- 
sons, the  gradation  of  the  examples 
to  precede  the  tables,  the  il!u.-tra- 
tion  of  the  examples  by  unit  marks, 
had  each  existed  in  a  separate  lorm 
in  different  and  separate  works  be- 
fore the  plaintiffs  work,  if  they  had 
never  been  before  united  in  one 
combination  or  in  one  work,  or  on 


184 


LAW    OF    COPYRIGHT. 


obtained  for  the  plaintiffs  at  their  own  cost,  Lord 
Langdale,  M.  R.  said,  "  there  is  no  doubt  but  that  a 
work  of  this   nature   may  be  the  subject  of  copy- 


right." ^ 


In  like  manner,  the  Court  of  Cassation,  in  France, 
decided  that  a  compilation  may  be  the  subject  of 
copyright,  under  the  law  of  July  19th,  1793.~  The 
book  was  a  devotional  work,  consisting  of  extracts 


one  page  in  the  manner  in  which 
the  plaintiff  has  united  and  connect- 
ed them.  No  person  has  a  right  to 
borrow  the  same  plan,  and  arrange- 
ment, and  illustrations,  and  servile- 
ly to  copy  them  into  any  other 
work.  The  same  materials  were 
certainly  open  to  be  used  by  any 
other  author,  and  he  would  be  at 
liberty  to  use  unit  marks  and  grada- 
tions of  examples  and  tables  and 
illustrations  of  the  lessons,  and  to 
place  them  in  the  same  page.  But 
he  could  not  be  at  liberty  to  tran- 
scribe the  very  les^sons  and  pages 
and  examples  and  illustrations  of  the 
plaintiff,  and  thus  to  rob  him  of  the 
fruits  of  his  industry,  his  skill,  and 
his  expenditures  of  time  and  money. 
"  I  have  dwelt  the  more  upon 
this  point,  because  it  seems  to  me 
that  some  of  the  learned  witnesses, 
whose  evidence  is  in  the  case,  have 
entirely  misunderstood  the  law  upon 
this  subject ;  and  some  portions  of 
the  argument  at  the  bar  seem  to  me 
to  have  yjroceeded  upon  an  equally 
inadmi-ssible  ground,  that  if  none  of 
the  materials  of  the  plaintiff's  book 
v^•ere  new,  or  invented  by  him,  that 
new  combinations  or  arrangements, 
or  illustrations  of  the  old  materials 
would  not  give  a  title  to  a  copy- 
right. My  judgment  is  far  other- 
wise ;  and  as  far  as  the  evidence  in 
this  case  goes,  it  is  clear  to  my 
mind,  that  the  plaintiff  has  a  good 


copyright  in  his  book  ;  that,  taking 
his  plan,  arrangements,  lessons,  ex- 
amples and  illustrations,  as  a  whole, 
they  are  not  to  be  found  combined 
in  any  former  work.  I  must  con- 
fess that  it  strikes  me  that  the  plain- 
tiff's method  is  a  real  and  substan- 
tial improvement  upon  all  the  works 
which  had  preceded  his,  and  which 
have  been  relied  on  in  the  evidence  ; 
but  whether  it  be  better  or  worse  is 
not  a  material  inquiry  in  this  case. 
If  worse  his  work  will  not  be  used 
by  the  community  at  large ;  if  better, 
it  is  very  likely  to  be  so  used.  But 
either  way,  he  is  entitled  to  his 
copyright,  Valere  quantum,  valtre 
potest.'''' 

*  Lewis  V.  Fullerton,  2  Beavan's 
R.  G.  See  also  Trussler  v.  Murray, 
1  East,  363  note.  Hogg  v.  Kirby, 
8  Yes.  215  ;  5  Yes.  85,  note  3,  (Sum- 
ner's edition.)  It  seems  that  on  a 
change  of  a  description  of  roads 
from  letter-press  to  copperplate  de- 
lineation, the  latter  form  is  to  be 
deemed  so  far  original,  as  to  justify 
the  author  in  doing  it  after  he  has 
sold  the  copyright  in  the  letter- 
press.   Carnan  v.  Bowles,  5  Yes.  81. 

As  to  new  corrections  and  addi- 
tions to  an  old  work,  see  Tonson  v. 
Walker,  cited  4  Bun-.  2.325.  Ton- 
son  V.  Collins,  Bl.  R.  321.  Motte 
V.  Falkner,  cited  Bl.  R.  331.  King 
V.  Reed,  8  Yes.  223,  note. 

^  Cited  ante,  p.  169. 


COMPILATIONS.  185 

from  the  devotional  writings  of  eminent  churchmen, 
arranged  in  a  particular  manner  with  reference  to 
the  festivals  of  the  church.  The  correctional  tribu- 
nal at  Lyons  decided  that  the  law  of  July  19,  1793, 
extended  the  privileges  of  authorship  only  to  those 
who  can  strictly  be  called  authors,  —  to  those  who 
could  claim  the  first  conception  of  a  work  of  litera- 
ture or  art  —  and  not  to  one  who  had  only  copied 
from  the  works  of  others.  They  held  that  the  com- 
piler of  this  book  had  only  copied  passages  from  the 
works  of  others,  with  slight  verbal  alterations  and 
additions,  and  that  neither  these  nor  the  plan  and 
arrangement  of  the  book  gave  it  the  character  of  a 
new  work,  because  the  greater  part  of  it,  which  was 
copied,  and  was  therefore  public i  juris,  drew  to  itself 
the  lesser  part,  which  was  really  new,  and  attached 
to  it  the  same  condition  of  publicity.  From  this 
decree  the  proprietor  appealed  to  the  court  of  cas- 
sation ;  and  M.  Merlin,  arguing  against  the  decree, 
contended  that  the  law  applied  not  merely  to  works 
the  fruit  of  the  conceptions  of  genius,  but  also  to 
the  productions  of  intelligence  ;  ^  and  that  the  de- 
cree confounded  a  compilation  which  is  the  fruit  of 
taste,  intelligence,  and  exquisite  and  ingenious  com- 
bination and  arrangement,  with  a  compilation  which 
implied  nothing  but  an  expenditure  of  time  and  re- 
search, and  an  indefatigable  patience  in  copying  word 


'  It  is  very  difficult  to  render  into  tions  de  genie'*''  and    ^' produrdons 

English  phrases  equally  happy  and  dc  Vesprit.'"     But  the  distinction  is 

distinct,   the  expressions   '■'■  produc-  obvious. 
16* 


liS6  LAW    OF    COPYRIGHT. 

for  word.  Pie  maintained,  that  under  this  decree  the 
Pandects  of  Pothier  would  be  no  subject  of  property, 
but  would  be  open  to  the  first  occupant.^ 

The  court  held  that  the  law  extends  to  selections, 
compilations,  and  other  works  of  that  nature,  when 
they  require  in  their  execution,  discernment,  taste, 
learning,  and  intellectual  labor ;  when,  in  short, 
instead  of  being  simply  copies  from  one  or  more 
other  books,  they  are  at  the  same  time  the  product 
of  conceptions  foreign  and  of  conceptions  peculiar 
to  the  author,  in  the  union  of  which  the  matter  re- 
ceives a  new  form  and  a  new  character.  The  work 
in  question  possessed  these  characteristics,  and  the 
decree  of  the  court  of  first  instance  was  therefore 
annulled.^ 

4.  It  is  upon  principles  somewhat  analogous,  but 
requiring  perhaps  a  more  careful  discrimination  than 
they  have  heretofore  received,  that  translations  and 
abridgments  have  been  said  to  be  original  works  and 
subjects  of  copyright. 

Translations  are  so  far  original,  as  the  labor  spent 
in  the  translation  may  make  them,  and  upon  this 
ground  they  have  been  held  to  be  undistinguisha- 
ble  from  other  works.^  It  is  undoubtedly  true,  that 
the  translation  of  a  work  from  a  foreign  tongue  incor- 
porates with  the  original  so  much  new  labor,  that  it 
may  with  propriety  be  treated,  for  some  purposes, 

*  Sec  his  eloquent  vindication  of  Contrefa^on,    torn.   3,  p.   701-708. 

the  authorship  of  Pothier,  ante,  p.  ^  Wyatt  v.  Barnard,   3  Ves.   & 

177.  B.  77.     Drury  on  Injunctions,  Part 

'Merlin,    Rep.    de   Jurisp.    tit.  II.  ch.  2,  ^  20,  p.  213. 


TRANSLATIONS.  187 

as  a  new  work.  It  is  the  policy  of  the  laws  which 
protect  copyright  to  encourage  this  and  every  other 
species  of  literary  labor,  as  far  as  may  consist  with 
the  vested  rights  of  authors.  But  it  may  perhaps 
admit  of  question,  whether  it  is  not  necessary,  in 
order  that  a  translator  should  acquire  a  new  title 
and  a  valid  copyright  in  literary  matter,  originally 
composed  by  another,  that  the  original  should  have 
been  first  published  in  a  foreign  country.  If  a  Brit- 
ish or  American  author  should  see  fit  to  publish  in 
his  own  country  an  original  work  in  a  foreign  or  a 
dead  language,  and  should  secure  the  copyright 
thereof  in  the  manner  required  by  law,  can  any 
person  translate  it,  and  by  such  translation  acquire 
the  right  to  publish  it  in  the  vernacular  tongue  ? 
The  answer  to  this  question  must  depend  in  a  good 
degree  upon  the  effect  to  be  given  to  the  act  of 
translation,  as  a  new  labor,  taken  in  connection  with 
the  fact  that  the  original  author  has  an  undoubted 
copyright  in  the  matter  of  the  work,  as  he  put  it 
forth.  Translation  of  a  work  published  in  a  foreign 
country  is  the  adoption  of  matter  in  which  no  one 
has  an  exclusive  right  in  the  country  where  the 
translation  is  made,  since  it  is  there  publici  juris; 
and  the  translator  impresses  upon  that  matter  so 
much  of  a  new  character  by  his  own  labor,  that  the 
law  treats  his  translation  as  a  new  product,  and  holds 
him  entitled  to  a  copyright,  to  protect  this  new  pro- 
duct, as  such.     At  the  same  time  any  one  else  may 


188  LAW    OF    COPYRIGHT. 

make  a  new  translation.  But  where  the  matter  of 
the  work  is  not  puUici  Juris,  is  the  new  form  given 
to  it  by  translation  sufficient  to  override  the  exclu- 
sive right  of  the  original  author  in  the  matter  itself  ? 
Notwithstanding  the  general  principle  of  the  English 
law  in  relation  to  translations,  this  question,  I  appre- 
hend, would  be  not  easy  of  solution,  in  the  case  of  a 
scientific  work  written,  for  instance,  in  Latin,  intend- 
ed for  the  learned,  and  intended  to  convey  a  new  dis- 
covery, or  other  information  peculiarly  original.  It 
would  be  urged,  in  such  a  case,  that  the  translation 
had  given  the  work  a  new  dress,  in  which  the  matter 
of  it  would  be  brought  within  the  reach  of  a  far 
greater  number  of  persons  ;  and  this,  it  would  be 
contended,  was  not  only  meritorious,  but  was  a  re- 
sult of  new  labor  of  a  purely  intellectual  kind.  Still, 
the  principle  which  allows  the  character  of  original- 
ity to  the  product  of  new  labor  upon  old  materials, 
would,  in  such  a  case,  encounter  the  exclusive  right 
of  the  original  author  in  the  matter  of  the  work  itself. 
In  other  analogous  cases,  this  principle  is  not  always 
of  sufficient  force  to  give  to  the  mere  labor  of  pre- 
paring a  new  dress,  or  a  new  form,  the  right  to  ap- 
propriate to  itself  the  original  matter  of  another  au- 
thor. Where  the  adoption  and  use  of  the  matter  of 
an  original  author,  whose  work  is  under  the  protec- 
tion of  copyright,  is  direct  and  palpable,  and  nothing 
new  is  added  but  form  or  dress,  or  an  immaterial 
change  of  arrangement,  the  law  will  treat  the  alter- 


TRANSLATIONS.  189 

atiou  as  merely  colorable,  and  will  stamp  it  with  the 
character  of  piracy.  Whether  the  change  of  form, 
or  dress,  pi^pdiiced  by  a  close  translation,  in  cases 
where  the  original  work  is  under  the  protection  of 
copyright,  can  have  any  greater  effect  than  belongs 
to  a  change  of  form  or  dress,  in  other  cases,  is  an 
interesting  question,  not  determined,  as  it  seems  to 
me,  by  the  general  principle  of  the  law  of  England, 
which  treats  translations  as  original  works.  This 
general  principle  was  established  only  with  reference 
to  translations  of  foreign  works,  not  under  the  pro- 
tection of  copyright.^ 

The  same  question  might  arise,  where  a  treaty, 
establishing  international  copyright,  subsists  between 
two  countries,  without  express  provision  being  made 
for  the  case  of  translations.     The  British   interna- 


*  The  question  here  considered  the  act,  yet  this  beinp  a  book  which 
seems  to  have  actually  arisen  once  to  his  knowledge  (having  read  it  in 
in  England,  but  the  case  was  dis-  his  study)  contained  strange  notions 
posed  of  upon  grounds  sufficiently  intended  by  the  author  to  be  con- 
absurd,  which  did  not  touch  the  cealed  from  the  vulgar  in  the  Latin 
point  raised,  if  the  imperfect  report  language,  in  which  language  it 
of  it  is  correct.  A  bill  was  brought  could  not  do  much  hurt,  the  learned 
for  an  injunction  to  stay  the  print-  being  better  able  to  judge  of  it,  he 
ing  and  publishing  a  translation  of  thought  it  proper  to  grant  an  injunc- 
Burnett's  Anhceolo^ia  Surra,  sug-  tion  to  the  printing  and  publishing  it 
gestingittobe  an  injury  to  the  exec-  in  English  ;  that  he  looked  upon  it, 
utor,  in  whom  the  property  of  the  that  this  court  has  a  superintcnd- 
book  was  vested  by  8  Anne,  c.  19.  ency  over  all  books,  and  might,  in  a 
It  was  insisted,  for  the  defendant,  summary  way,  restrain  the  printing 
that  a  translation  of  a  book  was  not  or  publishing  any  that  containcil  re- 
within  the  intent  of  the  act.  Lord  flections  on  religion  or  morality. 
Chancellor  Parker  said,  that  though  Burnett  v.  Chetvvood,2  Meriv.  141, 
a  translation  might  not  be  the  same  note.  For  the  talents  and  acquire- 
with  the  reprinting  the  original,  on  mentsof  Lord  Ch.  Parker,  see  Lord 
account  that  the  translator  has  be-  Campbell's  Lives  of  the  Chancel- 
stowed  his  care  and  pains  upon  it,  lors. 
and  so  not  within  the  prohibition  of 


190  LAW    OF    COPYRIGHT. 

tional  copyright  act  contains  a  proviso,  saving  the 
right  to  publish  and  sell  translations  of  any  book, 
the  author  whereof  and  his  assigns  ma^  be  entitled 
to  the  benefit  of  the  act.^ 

In  like  manner  there  is  a  general  doctrine  in  the 
English  law,  that  a  bona  fide  abridgment  of  a  previous 
work  may  be  the  subject  of  copyright  in  the  person 
who  makes  it,  upon  the  ground  that  it  is  a  new  work. 
The  present  chapter  is  not  the  appropriate  place  to 
consider  in  what  cases  an  abridgment  will  consti- 
tute a  piracy.  This  question  will  be  discussed  at 
large  in  a  subsequent  part  of  this  work.  But  it  is 
proper  here  to  inquire  into  the  doctrine  which  de- 
clares abridgments  to  be  the  subjects  of  new  copy- 
right, and  to  consider  what  discriminations  ought  to 
be  made  from  the  general  position  which  some  of  the 
authorities  appear  to  sanction. 

The  general  doctrine  is  that  a  bona  fide  abridg- 
ment is  in  the  nature  of  a  new  and  meritorious  work. 
The  most  elaborate  general  statement  of  this  doc- 
trine, found  in  the  books,  was  that  made  by  Lord 
Chancellor  Apsley,  assisted  by  Mr.  Justice  Black- 
stone,  in  a  case  relating  to  an  abridgment  of  Hawkes- 
worth's  Voyages.  His  lordship  is  reported  to  have 
said,  "  that  to  constitute  a  true  and  proper  abridg- 
ment of  a  work,  the  whole  must  be  preserved  in  its 
sense  ;  and  then  the  act  of  abridgment  is  an  act  of 
understanding,  employed  in  carrying  a  large   work 

'  1  and  2  Vict.  c.  59,  a.  13.    See  Appendix. 


TRANSLATIONS.  191 

into  a  smaller  compass,  and  rendering  it  less  ex- 
pensive, and  more  convenient  both  to  the  time  and 
use  of  the  reader,  which  made  an  abridgment  in  the 
nature  of  a  new  and  a  meritorious  work."  He  fur- 
ther stated  it  as  his  own  and  Mr.  Justice  Black- 
stone's  opinion,  "  that  an  abridgment,  where  the  un- 
derstanding is  employed  in  retrenching  unnecessary 
and  uninteresting  circumstances,  which  rather  dead- 
en the  narration,  is  not  an  act  of  plagiarism  upon 
the  original  work,  nor  against  any  property  of  the 
author  in  it,  but  an  allowable  and  meritorious 
work."^ 

Without  discussing  at  present  the  soundness  of 
this  definition  of  an  allowable  abridgment,  it  is  suffi- 
cient to  remark  here,  that  if  there  are  certain  classes 
of  works,  such  as  translations,  histories,  &c.  in  which, 
by  abridgment,  a  subsequent  writer  can  acquire  a 
new  and  independent  title  upon  the  footing  of  a  new 
work,  there  are  also  other  classes  of  works,  with 
reference  to  which  the  doctrine  of  abridgment  must 
encounter  an  exclusive  title  in  the  original  author,  so 
inseparable  from  the  matter  and  substance  of  the 
work,  that  it  must  create  the  gravest  doubts  whether 

'  Anon.     LoffY's  R.  775.     The  In  Dodsley  v.  Kinnersly,  Sir  Tho- 

other  authorities  are  Gyles  v.  Wil-  mas  Clarke,   M.  R.  said,  that  "  no 

cox,  2  Alk.   142.     Bell  c.  Walker,  certain  line  can  he  drawn  to  distin- 

1   Brown's  Ch.    R.   4.'J0.     Dodsley  fjuish  a  fair  abridgment,  but  every 

r.  Kinnersly,  Aiiibl.  403.     Butter-  ca.se  must  depend  on  iis  own    cir- 

worth  V.  Robinson,  5  Ves.  709.     In  cumstances  ;  "  and  I\lr.  Justice  Sto- 

these  cases,  the  general  doctrine  of  ry,  in  Gray*;.  Hussell,  I  Story's  R. 

a  Mr  liona  fide  abridgment,  as  con-  11,  19,  has  made  the  same  suirjcs- 

stituting  a  new  work,  is  taken  for  tion.     The  authorities  will  be  found 

granted,  but  no  approach  is  made  to  collected  and  examined  in  the  ciiap- 

a  definition  of  such  an  abridgment,  ter  relating  to  piracy,  post. 


192  LAW    OF    COPYRIGHT. 

the  pretensions  of  the  subsequent  writer  can  prevail 
over  the  rights  of  the  original  author. 

It  has  been  recently  held,  that  an  author  has  as 
much  right  in  his  plan,  and  in  his  arrangement,  and 
in  the  combination  of  his  materials,  as  he  has  in  his 
thoughts,  sentiments,  opinions,  and  his  modes  of  ex- 
pressing them.'  If  this  doctrine  be  correct,  it  fol- 
lows that  a  subsequent  author  cannot,  by  abridg- 
ment, acquire  a  new  and  independent  title  in  the 
plan,  arrangement,  and  combination  of  materials, 
made  use  of  by  a  former  author,  who  has  secured  his 
title  in  the  due  course  of  law.  It  would  seem  to  be 
quite  as  consistent  with  sound  principle,  to  hold  that 
a  mechanician  may  acquire  a  new  patent  by  making 
a  reduced  copy  of  an  original  machine,  previously 
protected  by  a  patent,  as  to  hold  that  by  the  mere 
act  of  abridgment,  a  new  title  can  be  acquired  in  the 
peculiar  matter  of  a  book.~ 

'  Emerson  v.  Davies,  3  Story's  R.         *  For  a  further  discussion  of  this 
7G8.  subject,  see  post,  Chap.  IX. 


CHAPTER   VI. 

OF   THE    STATUTE    REQUISITES    FOR    A    A^ALID    COPY- 
RIGHT. 

1.  In  the  United  Stales. 

2.  In  Great  Britain. 

1.  The  act  of  congress  of  3d  February,  1831,  §  4, 
requires  that  a  printed  copy  of  the  title  of  any  book, 
or  books,  map,  chart,  musical  composition,  print, 
cut,  or  engraving,  to  be  entitled  to  the  benefits  of  the 
act,  shall,  before  publication,  be  deposited  in  the 
clerk's  office  of  the  district  court  of  the  United  States 
for  the  district  where  the  author  or  proprietor  re- 
sides, which  title  is  to  be  recorded  by  the  clerk,  and 
a  certified  copy  of  the  title  as  recorded  is  to  be  de- 
livered to  the  author  or  proprietor.  Within  three 
months  from  the  publication,  the  author  or  proprie- 
tor is  to  deliver,  or  cause  to  be  delivered,  a  copy  of 
the  book,  map,  &c.  to  the  clerk,  which  it  is  made 
the  duty  of  the  clerk  to  transmit  to  the  secretary  of 
state. ^ 

'  Act  of  Cong.  Feb.  3,  1831,  ^  4.     See  Appendix. 

17 


194  LAW    OF    COPYRIGHT. 

The  fifth  section  of  the  same  act  makes  it  neces- 
sary to  insert  in  the  several  copies  of  each  and  every 
edition  published  during  the  term  secured,  on  the 
title-page,  or  the  page  immediately  following,  if  it 
be  a  book  ;  or  if  a  map,  chart,  musical  composition, 
print,  cut,  or  engraving,  to  impress  on  the  face 
thereof,  or  if  a  volume  of  maps,  charts,  music,  or 
engraving,  upon  the  title  or  frontispiece  thereof,  the 
words,  "Entered  according  to  act  of  congress,  in 
the  year  ,  by  A.  B.,   in  the  clerk's  office  of  the 

district  court  of         ,"  (as  the  case  may  be.)  ^ 

These  steps  are  all  essential  to  a  perfect  title,  ac- 
cording to  a  decision  made  by  the  supreme  court  of 
the  United  States,  upon  the  former  acts,  that  of 
1790  and  that  of  1802.  Upon  those  acts,  it  was  held 
by  the  court,  that  although  the  right  was  vested, 
when  a  copy  of  the  title  was  deposited  with  the 
clerk,  and  a  copy  of  his  record  was  printed,  as  the 
act  of  1802  required,  yet  that  the  performance  of  the 
other  conditions  was  essential  to  a  perfect  title.^ 

'  Sec.  5.  See  Appendix.  The  act  office,   the    requisites    remain    the 

of  1790,    ^  3,  required  the  author  same  under  the  act  of  1831,  as  they 

or  proprietor  to  publish   a  copy  of  stood  at  the  time  that  act  was  pass- 

the  record  or  certificate  of  entry   in  ed.     The  act  of  1790,  ^  4,  required 

one  or  more  newspapers  printed  in  the  author  or  proprietors,  within  six 

the  United  States,  for  the  space  of  months  of  the  publication,  to  deliver 

four  weeks.     The  act  of  1802  re-  or  cause  to  be  delivered  to  the  secre- 

quired,  thit  the  copy  of  the  record,  tary  of  state,  a  copy  of  the  book,  to 

whif'h  by  the  act  ot  1790  the  author  be  preserved  in  his  office.     The  act 

or  proprietor  was  required  to  pub-  of  1831  directs  the  copy  for  this  pur- 

lish,  should   also  be  inserted  in  the  pose  to  be  deposited  with  the  clerk 

page  of  the  book  next  to  the  title,  of  the  court,    within   three  months 

(See  Appendix,  p.  89.)     With  the  from  the  date  of  publication, 
exception  of  publication  in  the  news-         *  Wheaton  v.  Peters,  8  Peters  S. 

papers,  and  the  time   and  mode  of  C.    R.   591,  663,   065.     Upon  this 

deposit  in   the  secretary  of  state's  point,  the  court  said,   "  It  will  be 


THE    STATUTE    REQUISITES. 


195 


As  the  law  now  stands,  there  are  but  three  requi- 
sites for  securing  a  valid  copyright.  1.  The  deposit 
of  a  printed  copy  of  the  title,  before  publication,  with 


observed,  that  a  rijjht  accrues  under 
the  act  of  1790,  from  the  time  a  co- 
py of  the  title  of  the  l)(Ktk  is  deposit- 
ed in  the  clerk's  oflioe.  But  the 
act  of  1802  adds  another  requisite  to 
the  accruing  of  the  riijht,  and  that  is, 
that  the  record  made  hy  the  clerk 
shall  be  published  in  the  page  next 
to  the  tille-page  of  the  book. 

"  And  it  is  argued  with  great 
earnestness  and  ability,  that  these 
are  the  only  recpiisites  to  the  perfec- 
tion of  the  conijjlainant's  title.  That 
the  requisition  of  the  third  section  to 
give  public  notice  in  the  newspapers, 
and  that  contained  in  the  fourth  to 
deposit  a  copy  in  the  department  of 
state,  are  acts  subsequent  to  the  ac- 
cruing of  the  light,  and  whether 
they  are  performed  or  not,  cannot 
materially  affect  the  title. 

"  The  case  is  compared  to  a  grant 
with  conditions  subsequent,  which 
can  never  operate  as  a  forfeiture  of 
the  title.  It  is  said  also  that  the  ob- 
ject of  the  publication  in  the  news- 
papers, and  the  deposit  of  the  copy 
in  the  department  of  state  was  mere- 
ly to  give  notice  to  the  public  ;  and 
tliat  such  acts,  not  being  essential  to 
the  title,  after  so  great  a  lapse  of 
time,  may  well  be  presumed.  That 
if  neither  act  iiad  been  done,  the 
right  of  the  party  having  accrued, 
before  either  was  required  to  be 
done,  it  must  remain  unshaken. 

"  This  right,  as  has  been  shown, 
does  not  exist  at  common  law  —  it 
originated,  if  at  all,  under  the  acts 
of  congress.  No  one  can  deny  that 
when  the  legislature  arc  about  to 
vest  an  exclusive  right  in  an  author 
or  an  inventor,  they  have  the  power 
to  prescribe  the  conditions  on  which 
such  right  shall  be  enjoyed  ;  and 
that  no  one  can  avail  himself  of  such 


right  who  does  not  substantially 
comply  with  the  requisitions  of  the 
law.  This  principle  is  familiar,  as 
it  regards  patent  rights  ;  and  it  is 
the  same  in  relation  to  the  copyright 
of  a  book.  If  any  difference  shall 
be  made,  as  it  respects  a  strict  con- 
formity to  the  law,  it  would  seem  to 
be  more  reasonable  to  make  the  re- 
quirement of  the  author,  rather  than 
the  inventor.  The  papers  of  the 
latter  are  examined  in  the  depart- 
ment of  state,  and  require  the  sanc- 
tion of  the  attorney-general ;  but  the 
auilior  takes  every  step  on  his  own 
responsibility,  unchecked  by  the 
scrutiny  or  sanction  of  any  public 
functionary. 

"  The  acts  required  to  be  done  by 
an  author,  to  secure  his  right,  are  in 
the  order  in  which  they  must  natu- 
rally transpire.  First,  the  title  of 
the  book  is  to  be  deposited  with  the 
clerk,  and  the  record  he  makes  must 
be  inserted  in  the  first  or  second 
page  ;  then  the  public  notice  in  the 
newspapers  is  to  be  given ;  and 
within  six  months  after  the  publica- 
tion of  the  book,  a  coi)y  must  be  de- 
posited in  the  department  of  state. 

"A  right  undoubtedly  accrues  on 
the  record  being  made  with  the 
clerk,  and  the  printing  of  it  as  re- 
quired ;  but  what  is  the  nature  of 
that  right?  Is  it  perfect^  If  so,  the 
other  two  requisites  are  wholly  use- 
less. How  can  the  author  be  com- 
pelled either  to  give  notice  in  the 
ncwsjjapcr,  or  deposit  a  copy  in 
the  state  department.  The  statute 
affixes  no  penalty  for  a  failure  to 
perform  either  of  these  acts,  and  it 
provides  no  means  by  which  it  may 
be  enforced. 

"  But  we  are  told  they  arc  unim- 
portant acts.     If  they   are   indeed 


196 


LAW    OF    COPYRIGHT. 


the  clerk  of  the  district  court  ;  2.  Notice  to  the  pub- 
lic, by  pi'inting,  in  the  place  designated,  the  fact  of 
the  entry,  in  the  form  prescribed  by  the  statute  ; 


wholly  unimportant,  congress  acted 
unwisely  in  rcquirintj  them  to  be 
done,  liut  whether  they  are  impor- 
tant or  not,  is  not  for  the  court  to 
determine,  but  the  legislature  ;  and 
in  what  light  they  were  considered 
by  the  legislature,  we  can  learn  only 
by  their  official  acts. 
'  "  Judging  then  of  these  acts  by 
this  rule,  we  are  not  at  liberty  to 
say  they  are  unimportant,  and  may 
be  dispensed  with.  They  are  acts 
which  the  law  requires  to  be  done, 
and  may  this  court  dispense  with 
their  performance  ? 

"  But  the  inquiry  is  made,  shall 
the  non-performance  of  these  subse- 
quent conditions  operate  as  a  for- 
feiture of  the  right? 

"  The  answer  is,  that  this  is  not 
a  technical  grant  of  precedent  and 
subsequent  conditions.  All  the 
conditions  are  important  ;  the  law 
requires  them  to  be  performed,  and 
consequently  their  performance  is 
essential  to  a  perfect  title.  On  the 
performance  of  a  part  of  them  the 
right  vests  ;  and  this  was  essential 
to  its  protection  under  the  statute  : 
but  otlier  acts  are  to  be  done,  unless 
congress  have  legislated  in  vain,  to 
render  the  right  perfect. 

"  The  notice  could  not  be  publish- 
ed until  after  the  entry  with  the 
clerk,  nor  could  the  book  be  depos- 
ited with  the  secretary  of  state  until 
it  was  published.  But  these  are 
acts  not  less  important  than  those 
which  are  required  to  be  done  pre- 
viou.sly.  They  form  a  part  of  the 
title,  and  until  they  are  performed 
the  title  is  not  perfect.  The  deposit 
of  the  book  in  the  department  of 
state,  may  be  important  to  identify 
it  at  any  future  period,  should  the 
copyright  be  contested,  or  an   un- 


founded claim  of  authorship  asserted. 
But,  if  doubts  could  be  entertained 
whether  the  notice  and  deposit  of 
the  book  in  the  state  department, 
were  essential  to  the  title,  under  the 
act  of  1790  ;  on  which  act  my  opin- 
ion is  principally  founded,  though  I 
consider  it  in  connection  with  the 
other  act ;  there  is,  in  the  opinion  of 
three  of  the  judges,  no  ground  for 
doubt  under  the  act  of  1802.  The 
latter  act  declares  that  every  author, 
&c.  before  he  shall  be  entitled  to  the 
benefit  of  the  former  act,  shall,  '  in 
addition  to  the  requisitions  enjoined 
in  the  third  and  fourth  sections  of 
said  act,  if  a  book,  publish,'  &c.  — 
Is  not  this  a  clear  exposition  of  the 
first  act?  Can  an  author  claim  the 
benefit  of  the  act  of  1790,  without 
performing  the  requisites  enjoined 
in  the  third  and  fourth  sections  of  it? 
If  there  be  any  meaning  in  language, 
the  act  of  180-2,  the  three  judges 
think,  requires  these  requisites  to  be 
performed  '  in  addition  '  to  the  one 
required  by  that  act,  before  an  au- 
thor, &c.  '  shall  be  entitled  to  the 
benefit  of  the  first  act.' 

"  The  rule  by  which  conditions 
precedent  and  subsequent  are  con- 
strued, in  a  grant,  can  have  no  ap- 
plication to  the  case  under  consider- 
ation, as  every  requisite,  in  both 
acts,  is  essential  to  the  title. 

"  A  renewal  of  the  term  of  four- 
teen years  can  only  be  obtained  by 
having  the  title-page  recorded  with 
the  clerk,  and  the  record  published 
on  the  page  next  to  that  of  the  title, 
and  public  notice  given  within  six 
months  before  the  expiration  of  the 
first  term." 

See  also  Ewer  v.  Cox,  4  Wash. 
C.  C.  R.  486. 


THE    STATUTE    REQUISITES.  197 

3.  The  deposit  with  the  clerk  of  a  copy  of  the  publi- 
cation, within  three  months  from  the  date  of  publica- 
tion.' These  acts  are  also  made  essential  to  a  per- 
fect title,  by  the  statute  itself,  which  declares  that 
no  person  shall  he  entitled  to  its  benefits^  unless  he  shall 
have  complied  with  these  directions." 

In  all  cases  of  renewal  of  copyright,  under  the  act 
of  the  3d  February,  1831,  the  entry,  deposit  at  the 
clerk's  office,  &c.,  must  be  made  a  second  time, 
within  six  months  before  the  expiration  of  the  first 
term,  and  notice  thereof  must  be  given,  by  publish- 
ing a  copy  of  the  record  within  two  months  from  the 
date  of  the  renewal,  in  one  or  more  newspapers  pub- 
lished in  the  United  States,  for  the  space  of  four 
weeks. ^ 

'  The  provisions  of  law  respecting  transfers  and  as- 
signments of  copyrights,  will  be  found  stated  in  a 
subsequent  chapter. 

It  is  not  essential  to   the  validity  of  a  copyright, 

*  Act  of  Congress,  3d  Feb.  1831,  the  existing  acts  of  congress,  or 
^4.  I  do  not  include,  as  one  of  the  those  which  shall  hereafter  be  en- 
conditions  for  a  perfect  title,  the  re-  acted  rosipcctinof  copyrights,  shall, 
cent  enactment,  which  requires  a  within  three  months  from  the  publi- 
copy  of  every  work,  of  which  the  cation  of  said  book,  map,  chart, 
copyrifjht  shall  he  secured,  to  be  musical  composition,  print,  cut,  or 
sent  to  the  library  of  the  Smithson-  entrravinij,  deliver,  or  cause  to  be 
ian  Institute  ;  but  I  should  nut  ad-  delivered,  one  copy  of  the  same  to 
vise  the  neglect  of  this  requisition,  the  librarian  of  the  Smithsonian  Jn- 
although  it  is  not  enforced  by  any  stitution.  and  one  copy  to  the  libra- 
penalty  whatsoever.  The  statute,  rian  of  Congress  Library,  for  the 
containing  this  provision,  is  in  these  use  of  the  said  libraries.''  Act  of 
words  :  Congress,  10th  Aug.  1816,  ch.  178, 

''And  be  it  further  enacted,  That  ^  10. 

the  author  or  proprietor  of  any  book,  "^  Ibid. 

map,    chart,    musical   coinposiiion,  ^  Act  of  Congress,  3d  Feb.  1831, 

print,  cut,  or  engraving,  for  which  a  ^3. 
copyright   shall  be   secured    under 
17* 


198  LAW    OF    COPYRIGHT. 

that  the  author's  name  should  appear  upon  the  title- 
page.^ 


2.  Registration,  under  the  English  law,  seems  not 
to  be  essential  to  a  good  title,  but  merely  affects  the 
remedy.  By  the  5  and  6  Vict.  c.  45,  §  11,  it  is  en- 
acted, that  a  book  of  registry  be  kept  at  stationers' 
hall,  wherein  may  be  registered  the  proprietorship 
in  the  copyright  of  books,  and  assignments  thereof, 
and  in  dramatic  and  musical  pieces,  whether  in  man- 
uscript or  otherwise,  and  licenses  affecting  such 
copyright ;  and  certified  copies  of  any  entry  are 
made  prima  facie  proof  of  the  proprietorship  or 
assignment  of  copyright  or  license,  as  therein  ex- 
pressed.^ The  13th  section  makes  it  lawful  for  the 
proprietor  of  a  copyright  in  any  "book"^  published 
before  or  after  the  act,  to  make  entry  in  the  registry 
book  of  the  stationers'  company,  of  the  title  of  such 
book,  the  time  of  the  first  publication  thereof,  the 
name  and  place  of  abode  of  the  publisher,  and  the 
name  and  place  of  abode  of  the  proprietor  of  the 
copyright,  or  of  any  portion  thereof,  according  to  a 
form  annexed  to  the  act,  and  it  is  also  made  lawful 
for  every  such  registered  proprietor  to  assign  his  in- 
terest, or  any  portion  of  his  interest,  by  making  en- 

'  Beckford  v.  Hook,  7  T.  R.  620.  sion  of  a  volume,  pamphlet,  sheet  of 

*  Act  5  and  6  Vict.  c.  4.5,  ^11.  letter-press,   sheet  of  music,   map, 

'  The  word  "book,"  in  this  act,  chart,  or  plan  separately  published, 

includes  every  volume,  part,  or  divi-  sec.  2. 


REGISTRATION    IN    ENGLAND.  199 

try  in  the  book  of  registry  of  such  assignment,  and 
of  the  name  and  place  of  abode  of  the  assignee,  in  a 
form  annexed  to  the  act  ;  and  such  assignment,  so 
entered,  is  declared  to  be,  without  stamp  or  duty,  of 
the  same  force  and  effect  as  if  made  by  deed.' 

The  19th  section  provides,  that  the  proprietor  of 
the  copyright  in  any  encyclopedia,  review,  magazine, 
periodical  work,  or  other  work  published  in  a  series 
of  books  or  parts,  shall  be  entitled  to  all  the  benefits 
of  registration  under  the  act,  on  entering  in  the  book 
of  registry  the  title  of  the  work,  the  time  of  ihe  first 
publication  of  the  first  volume,  number  or  part,  or  ol 
the  first  number  or  volume  first  published  after  the 
passing  of  the  act,  in  any  such  work  which  shall  have 
been  published  before  the  act,  and  the  name  and 
place  of  abode  of  the  proprietor,  and  of  the  publisher, 
when  the  publisher  is  not  the  proprietor.^ 

The  24th  section  enacts,  that  no  proprietor  of 
copyright  in  any  book  which  shall  be  first  published 
after  the  passing  of  the  act,  shall  maintain  any  action 
or  suit,  at  law  or  in  equity,  or  any  summary  pro- 
ceeding, in  respect  of  any  infringement  of  such  copy- 
right, unless  he  shall,  before  commencing  such  action, 
suit,  or  proceeding,  have  caused  an  entry  to  be  made 
in  the  book  of  reg'stry  of  the  stationers'  company,  of 
such  book,  pursuant  to  the  act  f  provided  always. 


'  Act  5  ami  G  ^'ict.  c.  45,  §  13.  tioners'  hall;  but  the  penalties  ffiven 

*  Ibid.  i5>  I'J.  by  the   8  Anne,  c.  19,  could  not  be 

'  Forinerly,  an  action  for  damages  recovered.      Beckford    v.  Hood,   7 

could  be   mainiained,  although  the  T.  R.  6"J0. 

work  had  not  been  entered  at  sta- 


200  LAW    OF    COPYRIGHT. 

that  the  omission  to  make  such  entry  shall  not  affect 
the  copyright  in  any  book,  but  only  the  right  to  sue 
or  proceed  in  respect  of  the  infringement  thereof; 
provided  also,  that  nothing  in  the  act  shall  prejudice 
the  remedies  which  the  proprietor  of  the  sole  liberty 
of  representing  any  dramatic  piece  shall  have  by  vir- 
tue of  the  act  3  Wm.  IV.  or  of  this  act,  although  no 
entry  shall  be  made  in  the  book  of  registry/ 

By  the  20th  section  of  this  act,  dramatic  and  mu- 
sical compositions  are  to  be  registered,  by  entering 
the  title  of  the  production,  the  name  and  abode  of 
the  author  or  composer,  the  name  and  abode  of  the 
proprietor,  and  the  time  and  place  of  the  first  re- 
presentation or  performance.^  But  the  omission  to 
register  is  not  to  affect  the  remedies  which  the  pro- 
prietor of  the  sole  liberty  of  representation  has  by 
virtue  of  this  act,  or  of  the  3  Wm.  IV.  c.  15.^ 

University  and  Collegiate  Copyright. 

The  acts  15  George  III.  c.  53,  §  1,  and  41  George 
III.  c.  107,  §  3,  secure  to  the  two  universities  of 
Oxford  and  Cambridge  and  the  colleges  within  them, 
the  four  universities  in  Scotland,  Trinity  College, 
Dublin,  and  the  Colleges  of  Eton,  Westminster,  and 


'  Act  5  and  G  A^ict.  c.  45,  ^  2i.  to    be  a  copy  of  any  entry  in  the 

The  12ih  section  of  this  act  makes  it  registry  book, 
an  indictable  misdemeanor,  punish-         ^  Act  5  and  6  Vict.  c.  45,  ^  20. 
able  accordingly,  for  any  person  vvil-         •'Ibid,    i^*  21.     The   term  "  dra- 

fully  to  make,  or  cause  to  be  made,  matic  piece,"  in    this  act,  includes 

any  false  entry,  or  wilfully  to  pro-  every  tragedy,  comedy,  play,  opera, 

duce,  or  cause  to  be  tendered  in  evi-  farce,   or  other  scenic,  musical,   or 

dence,  any  paper  falsely  purporting  dramatic  entertainment.     Sect.  2. 


UNIVERSITY    A^D    COLLEGIATE    COPYRIGHT. 

Winchester,  a  copyright  in  books  given  or  bequeath- 
ed to  them  for  the  advancement  of  useful  learning  or 
other  purposes  of  education  ;  and  this  copyright  they 
hold  in  perpetuity,  unless  the  bequest  is  expressly 
stated  to  be  for  a  limited  term,  and  if  they  continue 
to  print  at  their  own  presses.  But  the  penalties 
given  by  these  acts  against  piracy,  cannot  be  recov- 
ered, unless  the  title  to  the  copy  of  the  book  be  en- 
tered at  stationers'  hall,  within  the  space  of  two 
months  after  the  bequest  or  gift  thereof  shall  have 
come  to  the  knowledge  of  the  vice-chancellors,  or 
heads  of  colleges,  or  principals,  of  the  said  institu- 
tions, respectively.^  If  the  clerk  of  the  stationers' 
company  neglect  or  refuse  to  make  the  entry  and 
grant  a  certificate  thereof,  when  required,  then  the 
proprietors  (notice  being  first  given  of  such  neglect 
or  refusal  in  the  London  Gazette,)  are  to  have  the 
like  benefit  as  if  the  entry  and  certificate  had  been 
made  and  given,  and  the  clerk  is  subjected  to  a  pen- 
alty.^ 

Prints  and  engravings  are  regulated  by  the  acts 
8  Geo.  II.  c.  13,  7  Geo.  III.  c.  38,  and  17  Geo.  III. 
0.  57,  the  latter  being  extended  to  Ireland  by  the 
6  and  7  Wm.  IV.  c.  59.  Registration  does  not  seem 
to  be  required  ;  but  the  statute  8  Geo.  II.  c.  13,  §  1, 


'  Sawyer  v.  Dicey,  3  Wills.  fiO.  tained  these  rights  by  special  enact- 

*  Acts  15   Geo.  III.   c.  53,   ^5;  ment,  after  the  decision  of  the  house 

and  41  Geo.  III.  c.  107,  ^  5.     The  of  lords,  in  Donaldson   v.  Bocket, 

rightsof  the  several  universities  and  had    unexpectedly   overthrown   the 

colleges  mentioned  in  these  acts  are  doctrine  of  perpetual   copyright  at 

saved  to  them  by  the  5  and  6  Vict,  common  law. 
c.  45,  ^  27.     The  universities  ob- 


202  LAW    OF    COPYRIGHT. 

requires  that  the  day  of  the  first  publication  shall  be 
truly  engraved  with  the  name  of  the  proprietor  on 
each  plate,  and  printed  on  every  copy.  The  fulfil- 
ment of  this  requisition  has  been  held  to  be  neces- 
sary, to  enable  a  party  to  recover,  in  case  of  piracy, 
the  penalties  imposed  by  the  statutes.  But  it  was 
formerly  doubted  whether  an  action  at  law  for  dam- 
ages, or  a  bill  in  equity  for  an  account  and  injunc- 
tion, could  not  be  sustained,  without  a  compliance 
with  these  requisitions.^  But  it  has  since  been 
settled,  that  no  action  for  the  piracy  of  a  print 
can  be  maintained,  unless  the  date  and  name  of  the 
proprietor  were  engraved  upon  it,  according  to  the 
act.^ 

Sculpture,  which  is  protected  by  the  act  54  Geo. 
III.  c.  56,  (which  amended  the  33  Geo,  III.  c.  71,) 
must  have  the  name  of  the  proprietor,  with  the  date, 
put  upon  each  original  copy  or  cast.^ 

Delivery  of  Copies  to  certain  Public  Libraries^     The 


*  Blackwellu.  Harper,  2  Atk.  95.  be  delivered,  one  for  each  of  the  two 
Roworth  U.Wilkes,  1  Camp.  95.  English  universities,  and  one  for  the 
Harrison  v.  Ihigg,  2  Ves.  Jr.  323.  king's  library.  This  was  followed 
Thiimpson  v.  Symonds,  5  T.  R.  41.  by  the  8  Anne,  c.  19,  which  extend- 

*  Brooks  I'.  Cock,  3  Ad.  &  Ellis,  ed  the  number  of  copies  to  nine  ;  one 
138.  for  the  King's  Library,  two  for  the 

'  Act  54  George  III.    c.  56,  §  1.  libraries  of  Oxford   and  Cambridge, 

See  Appendix.  four  for   the   libraries   of  the  four 

*  It  has  long  been  a  part  of  the  Scotch  universities,  one  for  Sion 
policy  ot  English  legislation  on  the  College  in  London,  and  one  for  the 
subject  of  literature,  to  support  cer-  library  of  the  Faculty  of  Advocates 
tain  institutions  by  compelling  a  de-  in  Edinburgh.  The  41  George  III. 
livery  of  a  certain  number  of  copies  c.  107,  gave  two  more  copies,  one 
of  all  published  works.  The  first  to  Trinity  College,  and  one  to  the 
statute  containing  this  requirement.  King's  Inn,  Dublin.  The  54  George 
was  the  13  and  14  Car.  11.  c.  33,  by  111.  c.  156,  substituted  the  British 
which  three  copies  were  ordered  to  Museum,  in  place  of  the  King's  Li- 


COPIES    TO    PUBLIC    LIBRARIES.  203 

5  and  6  Vict.  c.  45,  §  6,  requires  the  delivery  to  the 
British  Museum,  of  a  printed  copy  of  every  book 
published  after  the  passing  of  the  act,  together  with 
all  maps,  prints,  or  other  engravings  belonging  to  it, 
finished  and  colored  as  are  the  best  copies  of  the 
work  ;  also  of  a  printed  copy  of  any  second  or  sub- 
sequent edition  published  with  additions  or  altera- 
tions, whether  in  the  letter-press  or  in  the  maps, 
prints,  or  other  engravings,  and  whether  the  first 
edition  was  published  before  or  after  the  passing  of 
the  act  ;  and  also  of  a  printed  copy  of  any  second  or 
subsequent,  of  which  the  first  or  some  preceding 
edition  has  not  been  delivered  to  the  Museum.  Each 
of  these  copies  is  required  to  be  bound,  sewed  or 
stitched  together,  and  to  be  upon  the  best  paper  on 
which  the  work  is  printed  ;  and  the  delivery  must 
be  made  within  one  calendar  month  after  the  book  is 
first  published  within  the  bills  of  mortality,  or  within 
three  calendar  months  after  it  is  first  published  in 
any  other   part  of  the   united  kingdom,    or   within 


brary.     Under    these    statutes,   all  tax  upon  literature  should  have  been 

books  published,  whether  entered  at  introduced    into    this    country.     If 

statiiiners'   hall   or    not,    were    de-  confined  to  a  single  institution,  it  will 

mandable,    under   a   penalty.     The  never  be  very  seriously  felt.     But, 

University  of  Cambridge  c.  Bryer,  should  the  instances  be  multiplied, 

16  East,  317.     Tliis  legislation  has  the  justice  and   expediency   of  the 

recently  been  followed  in  the  United  measure  will  require  grave  conside- 

States,  in  the   law  establishing  the  ration.       In    ISIB,    evidence    was 

Smithsonian  Insiitute,  (Act  of  ("on-  taken   before   a    committee   of  the 

gress,   Aug.    184G,  c.  178.)   which  house  of  commons,  upon  the  propri- 

directs,  without  any  penalty,  a  copy  ety  of  this  tax.     F'or  this  evi.lence 

of  every  book,   of  wiiicli   tiie  copy-  and  other  discussions  on  the  subject 

right  shall  be  secured,  to  be  sent  to  see    Maugham   on    ('opyright,  Ap- 

the  library  of  that  institution.     It  is  pendix,  p.  2:29,  et  seq. 
to  be  regretted  that  this  species  of 


204  LAW    OF    COPYRIGHT. 

twelve  calendar  months  after  it  is  first  published  in 
any  other  part  of  the  British  dominions.^  The  sev- 
enth section  of  the  act  prescribes  the  days  on  which 
the  delivery  is  to  be  made,  and  directs  the  person 
receiving  the  book  to  give  a  receipt  for  the  same  in 
writing." 

The  eighth  section  of  the  same  statute  requires 
that  a  copy  of  every  book,  or  of  any  second  or  sub- 
sequent edition  containing  additions  or  alterations, 
together  with  all  maps,  and  prints  belonging  to  it, 
published  after  the  passing  of  the  act,  on  the  paper 
of  which  the  largest  number  of  copies  is  printed  for 
sale,  and  in  like  condition  with  them,  shall,  on  de- 
mand in  writing,  left  at  the  publisher's  abode  within 
twelve  months  after  publication,  under  the  hand  of 
the  officer  of  the  stationers'  company,  or  of  any  per- 
son with  authority  from  the  Bodleian  Library  at  Ox- 
ford, the  Public  Library  at  Cambridge,  the  Library 
of  the  Faculty  of  Advocates  at  Edinburgh,  and  the 
Library  of  Trinity  College,  Dublin,  be  delivered 
within  one  month  after  such  demand,  to  the  officer 
of  the  stationers'  company ;  which  copies  the  officer 
is  required  to  receive  for  the  use  of  the  library  for 
which  such  demand  shall  have  been  made,  and  to 
give  a  written  receipt  therefor.^  But  it  is  optional 
with  the  publisher  to  deliver  the  copies  at  the  libra- 
ries, instead  of  at  the  stationers'  company.^  The 
penalty  for  default  in  delivering  copies  as  required 

'  Act  5  and  6  Vict.  c.  45,  ^  6.  ^  Ibid,  is  8. 

»  Ibid    ^  7.  ■•  Ibid.  ^  9. 


COPIES    TO    PUBLIC    LIBRARIES.  205 

by  the  act,  is,  besides  the  value  of  the  book,  a  sum 
not  exceeding  five  pounds,  to  be  recovered  to  the 
use  of  the  library,  by  summary  conviction  before  two 
justices  of  the  peace,  or  by  an  action  of  debt. ^ 

'  Act  5  and  6  Vict.  c.  45,  ^  10. 


18 


CHAPTER  VII. 

DURATION   OF  COPYRIGHT. 

1.  Duration  of  Copyright  in  England. 

1.  Books}  The  act  8  Anne,  c.  29,  (passed  April 
18th,  1710,)  gave  the  author  or  proprietor  of  a  book, 
then  already  printed,  the  sole  and  exclusive  right  of 
printing  it  for  twenty  years.  It  also  gave  to  the  au- 
thor and  his  assignee  of  a  book  then  already  com- 
posed, but  not  published,  or  of  a  work  that  should 
thereafter  be  composed  and  published,  the  sole  lib- 
erty to  print  and  reprint  it  for  the  term  of  fourteen 
years  and  no  longer,  to  commence  from  the  day  of 
its  first  publication  ;  with  the  further  provision,  that 
in  case  the  author  should  be  living  at  the  end  of  the 
first  term  of  fourteen  years,  then  the  .  ole  right  of 
disposing  of  copies  of  the  work  should  return  to  him 
for  another  term  of  fourteen  years.^  In  the  54 
Geo.  III.  c.  156,  (passed  July  20th,  1814,)  all  the 
provisions  of  the  former  acts  were  consolidated  ;  con- 

'  For  the  definition  of  the  statute     41  Geo.  III.  c.  167,  the  law  of  copy- 
term  "book,"  see  post,  p.  207,  n. 2.     right  in  Ireland  was  assimilated  to 
^  See  Appendix,  p.  2.      By  the    that  in  Great  Britain. 


TERM    OF    COPYRIGHT.  207 

siderable  alteration  was  at  the  same  time  made  in 
the  law  ;  the  term  of  copyright  in  the  author  and 
his  assignee  was  extended  to  twenty-eight  years  ab- 
solutely, and  for  the  life  of  the  author  ;  and  to  bene- 
fit the  families  of  those  authors  who  were  alive  at 
the  time  the  act  was  passed,  but  who  might  die  be- 
fore the  first  fourteen  years  from  the  day  of  publica- 
tion had  expired,  a  further  term  of  fourteen  years 
was  given  to  the  personal  representatives  of  such 
authors,  without  prejudice  to  all  or  any  part  of  the 
former  term.* 

The  5  and  6  Vict.  c.  45,  (passed  July  1st,  1842,) 
revised  the  whole  subject.  The  3d  section  of  that 
act  provides,  "  That  the  copyright  in  every  book,- 
which  shall,  after  the  passing  of  this  act,  be  publish- 
ed in  the  lifetime  of  its  author,  shall  endure  for  the 
natural  life  of  such  author,  and  for  the  further  term 
of  seven  years,  commencing  at  the  time  of  his  death, 
and  shall  be  the  property  of  such  author  and  his 
assigns  ;  provided  always,  that  if  the  term  of  seven 
years  shall  expire  before  the  end  of  forty-two  years 
from  the  first  publication  of  such  book,  the  copyright 
shall,  in  that  case,  endure  for  a  period  of  forty-two 
years  ;  and  that  the  copyright  in  every  book  which 
shall  be  published  after  the  death  of  its  author,  shall 

'  See  Appendix,  p.  38.  Fortius  '  By  the  2d  section,  the  word 
short  annlysis  of  the  two  acts  re-  "book,"  in  the  construction  of  this 
cited  in  the  text.  I  am  indebted  to  a  act,  is  declared  to  include  "every 
little  work  on  Copyrin;ht.  liy  Peter  volume,  part  or  division  of  a  vol- 
Burke,  Esq.  of  the  Inner  'remple,  ume,  pamphlet,  sheet  of  letter-press, 
Barrister  at  Law,  published  at  Lon-  sheet  of  music,  map,  chart,  or  plan, 
don  in  18-12,  12mo.  pp.  (5-1.  separately  published." 


208  LAW    OF    COPYRIGHT. 

endure  for  the  term  of  forty-two  3^ears  from  the  first 
publication  thereof,  and  shall  be  the  property  of  the 
proprietor  of  the  author's  manuscript,  from  which 
such  book  shall  be  first  published,  and  his  assigns."^ 

According,  therefore,  to  the  present  law  of  Eng- 
land, the  copyright  of  every  book  published  during 
the  author's  lifetime  is  to  last  certainly  for  forty-two 
years  from  the  date  of  its  first  publication  ;  and  if  the 
author's  life  and  the  seven  years  after  his  decease 
cover  a  longer  period  than  forty -two  years,  the  copy- 
right may  last  longer.  The  copyright  of  a  book  pub- 
lished after  the  author's  death  will  endure  for  forty- 
two  years  from  the  date  of  the  first  publication. 

The  fourth  section  of  the  statute  enacts,  "  That 
the  copyright  which  at  the  time  of  the  passing  of 
this  act,  shall  subsist  in  any  book  theretofore  pub- 
lished (except  as  hereinafter  mentioned,)  shall  be  ex- 
tended and  endure  for  the  full  term  provided  by  this 
act  in  cases  of  books  thereafter  published,  and  shall 
be  the  property  of  the  person  who  at  the  time  of  the 
passing  of  this  act  shall  be  the  proprietor  of  such 
copyright ;  provided  always,  that  in  all  cases  in 
which  such  copyright  shall  belong,  in  whole  or  in 
part,  to  a  publisher,  or  other  person  who  shall  have 
acquired  it  for  other  consideration  than  that  of  natu- 
ral love  and  affection,  such  copyright  shall  not  be 
extended  by  this  act,  but  shall  endure  for  the  term 
which  shall  subsist  therein  at  the  time  of  the  passing 

'  See  Appendix,  p.  66. 


TERM    OF    COPYRIGHT.  209 

of  this  act,  and  no  longer  ;  unless  the  author  of  such 
book,  if  he  shall  be  living,  or  the  personal  represent- 
ative of  such  author,  if  he  shall  be  dead,  and  the 
proprietor  of  such  copyright  shall,  before  the  ex- 
piration of  such  term,  consent  and  agree  to  accept 
the  benefits  of  this  act  in  respect  to  such  book,  and 
shall  cause  a  minute  of  such  consent,  in  the  form  in 
that  behalf  given  in  the  schedule  to  this  act  annexed, 
to  be  entered  in  the  book  of  registry  hereinafter 
directed  to  be  kept,  in  which  case  such  copyrights 
shall  endure  for  the  full  term  by  this  act  provided, 
in  cases  of  books  to  be  published  after  the  passing  of 
this  act,  and  shall  be  the  property  of  such  person  or 
persons  as  in  such  minute  shall  be  expressed." 

Copyrights,  therefore,  which  existed  before  the 
passing  of  this  act,  and  which  had  not  expired,  are 
extended  through  the  natural  life  of  the  author,  and 
for  seven  years  after  his  decease,  or  for  forty-two 
years  certain  from  the  date  of  first  publication.  This 
extended  term,  however,  will  not  belong  to  the  pro- 
prietor who  has  obtained  the  assignment  for  other 
consideration  than  that  of  natural  love  and  afiection, 
unless  the  extension  be  agreed  on  between  such 
proprietor  and  the  author,  or  his  personal  repre- 
sentative. 

In  order  to  provide  against  the  suppression  of 
books  of  importance  to  the  public,  the  filth  section 
of  the  statute  makes  it  lawful  for  the  judicial  com- 
mittee of  the  privy  council,  on  complaint  made  to 
them,  that  the  proprietor  of  the  copyright  in  any 

18* 


210  LAAV    OF    COPYRIGHT. 

book,  after  the  death  of  its  author,  has  refused  to 
republish,  or  to  allow  the  republication  of  the  same, 
and  that  by  reason  of  such  refusal  such  book  may 
be  withheld  from  the  public,  to  grant  a  license  to 
such  complainant  to  publish  such  book,  in  such  man- 
ner, and  subject  to  such  conditions  as  they  may  think 
fit,  and  that  it  shall  be  lawful  for  such  complainant 
to  publish  such  book  according  to  such  license.^ 

2.  Dramatic  and  Musical  Compositions.  By  the 
law  of  England,  a  double  copyright  may  exist  in  a 
dramatic  or  musical  composition,  viz.  the  sole  right 
of  printing,  and  the  sole  right  of  representation  or 
performance. 

The  sole  right  of  printing  and  publishing  plays 
and  musical  compositions  is  vested  in  the  authors  for 
the  same  period  of  time  as  is  provided  in  the  case  of 
books.^ 

By  the  3  Wm.  IV.  c.  15,  §  1,  the  sole  right  of 
representation  or  performance  of  plays,  composed  or 
to  be  composed  and  not  printed  and  published  by  the 
author  or  his  assignee,  was  secured  to  the  author  and 
his  assignee,  indefinitely  ;  and  in  the  case  of  plays, 
printed  or  published  after  the  passing  of  the  act, 
(10th  June,  1833,)  or  within  ten  years  before,  the 
sole  right  of  representation  or  performance  was  given 
to  the  author  or  his  assignee,  for  a  period  of  twenty- 
eight  years  from  the  time  of  publication,  or  of  the 
passing  of  the  act,  or,  if  the  author  were  living  at  the 

>  Act  5  &  6  Vict.  c.  45,  ^  5.  ^  Ibid.  §  2. 


DRAMATIC    AND    MUSICAL    COMPOSITIONS.        211 

end  of  that  period,  for  the  remainder  of  the  author's 
life. 

By  the  5  and  6  Vict.  c.  45,  §  20,  the  sole  liberty 
of  representing  or  performing,  or  causing  or  permit- 
ting to  be  represented  or  performed,  any  dramatic 
piece  or  musical  composition,  was  made  to  endure 
and  be  the  property  of  the  author  and  his  assigns,  for 
the  term  provided  in  the  same  act  for  the  duration  of 
copyright  in  books,  viz.  for  the  author's  life,  and 
seven  years  after  his  death,  or  for  forty-two  years. 

The  question  may  arise,  under  these  statutes, 
whether  the  author  of  an  unpublished  play  or  musi- 
cal composition,  has  the  exclusive  right  of  represent- 
ation or  performance  forever.  The  act  3  Wm.  IV. 
c.  15,  gave  to  the  author,  or  his  assignee,  of  an  un- 
published play,  the  sole  liberty  of  performing  it, 
without  any  limitation  of  time,  and  when  it  is  consid- 
ered that  by  the  common  law  it  had  previously  been 
settled  that  representation  is  not  publication,  and 
that  consequently,  so  long  as  the  author  keeps  his 
play  in  manuscript,  no  one  can  acquire  the  right  to 
perform  it  by  printing  it  surreptitiously  from  the 
mouths  of  the  actors,  it  would  seem  that  this  act  is 
merely  declaratory  of  the  common  law,  and  intended 
to  confirm  a  perpetual  exclusive  right  in  the  case  of 
an  unpublished  play.  But  the  act  5  and  6  Vict, 
c.  45,  §  20,  without  noticing  the  distinction  between 
published  and  unpublished  plays,  contained  in  the 
former  act,  recites  as  follows  :  "  And  whereas  an 
act  was  passed  in  the  third  year  of  the  reign  of  his 


212  LAW    OF    COPYRIGHT. 

late  Majesty,  to  amend  the  law  relating  to  dramatic 
literary  property,  and  it  is  expedient  to  extend  the  term 
of  the  sole  liberty  of  representing  dramatic  pieces  given 
by  that  act  to  the  full  time  by  this  act  provided  for  the 
continuance  of  copyright ;"  and  it  then  enacts,  that 
"  the  sole  liberty  of  representing  or  performing,  or 
causing  or  permitting  to  be  represented  or  perform- 
ed, any  dramatic  piece  or  musical  composition,  shall 
endure  and  be  the  property  of  the  author  thereof, 
and  his  assigns,  for  the  term  in  this  act  provided  for 
the  duration  of  copyright  in  books,  viz.  during  the 
author's  life  and  for  seven  years  after  his  decease,  if 
the  life  and  the  term  of  seven  years  together  make 
forty-two  years,  and  if  not,  then  for  forty-two  years 
from  the  first  publication.  The  construction  of  the 
two  acts  together,  will  be  aided  by  inquiring  what 
term,  in  the  act  3  Wm.  IV.  is  referred  to  by  the 
words  in  the  preamble  of  the  last  act,  "  the  term  of 
the  sole  liberty,"  &c.  which  is  to  be  extended.  No 
other  term  is  provided  in  the  former  act,  than  that 
for  the  performance  of  published  plays.  The  sole 
right  to  perform  unpublished  plays  is  confirmed  to  the 
author  without  limitation  of  time.  If,  therefore,  the 
preamble  refers  to  the  term  before  provided  for  pub- 
lished plays,  and  confines  the  general  words  of  the 
enacting  clause  to  the  same  reference,  the  sole  right 
to  perform  unpublished  plays  is  not  reduced  from  a 
perpetuity  to  a  term  of  forty-two  years,  but  remains 
untouched. 

Assuming  this  to  be  so,  the  law  now  stands  thus : 


ENGRAVINGS.  213 

1.  The  author  or  assignee  of  a  dramatic  or  musical 
composition,  unprinted  and  unpublished,  has  a  sole 
and  perpetual  right  to  its  performance. 

2.  The  author  or  assignee  of  a  dramatic  or  musical 
composition  printed  and  published  within  ten  years 
before  the  passing  of  the  3  and  4  Wm.  IV.  c.  15, 
(10th  June,  1833,)  or  printed  and  published  after  the 
passing  of  that  act,  has  the  sole  right  of  performance 
for  the  author's  life,  and  seven  years  after  his  death, 
and  if  that  time  expire  before  fort)^-two  years  from 
the  time  of  first  performance,  then  for  such  forty- 
two  years.  ^ 

3.  Engravings.  The  8  Geo.  II.  c.  13,  vested  a 
copyright  in  historical  and  other  prints  for  the  term 
of  fourteen  years,  to  commence  from  the  day  of  the 
first  publication.  By  the  7  Geo.  III.  c.  38,  §  1, 
the  benefits  of  the  former  act  were  extended  to  the 
prints  of  any  portrait,  conversation,  landscape,  or 
architecture,  map,  chart  or  plan,  or  any  other  prints 
whatsoever,  whether  taken  from  the  artist's  own 
original  designs,  or  from  any  picture,  drawing,  mo- 
del, or  sculpture,  either  ancient  or  modern  ;  and  the 
term  of  enjoying  the  right  was  in  all  cases  enlarged 
from  fourteen  to  twenty-eight  years. 

Maps,  charts  and  plans  are  now,  by  the  5  and  b 
Vict.  c.  45,  §  2,  regarded  as  "books,"  and  are  con- 
sequently entitled  to  the  same  period  of  copyright. 

4.  Sculpture.     In  the  subjects  of  sculpture,  by  the 

*  Burke  on  Copyright,  p.  42. 


214  LAW    OF    COPYRIGHT. 

64  Geo.  III.  c.  56,  §  1,  a  term  of  fourteen  years 
copyright  is  vested  in  the  person  who  made  or  caus- 
ed to  be  made  the  original  sculpture,  model,  copy  or 
cast ;  and,  by  the  fifth  section,  an  additional  term  of 
fourteen  years  is  also  given,  if  such  person  be  living 
at  the  end  of  the  first  term,  and  have  not  divested 
himself  of  the  copyright  by  sale  or  otherwise.^ 

2.  Duration  of  Copyright  in  the  United  States. 

By  the  act  of  congress  of  3d  February,  1831,  §  1, 
books,  maps,  charts,  musical  compositions,  prints, 
cuts  and  engravings,  have  a  term  of  copyright  of 
twenty-eight  years  from  the  time  of  recording  the 
title  thereof.^ 

If,  at  the  expiration  of  the  first  term  of  twenty- 
eight  years,  the  author,  inventor,  designer,  engraver, 
or  any  of  them,  where  the  work  had  been  originally 
composed  and  made  by  more  than  one  person,  be 
still  living,  and  a  citizen  or  citizens  of  the  United 
States,  or  resident  therein,  or  being  dead,  shall  have 
left  a  widow,  or  child,  or  children,  either  or  all  then 
living,  the  same  exclusive  right  shall  be  continued  to 
such  author,  designer,  or  engraver,  or  if  dead  then 
to  such  widow  and  child,  or  children,  for  the  further 
term  of  fourteen  years  :  Provided,  that  the  title  of 
the  work  so  secured  shall  be  a  second  time  recorded, 
and  all  the  other  regulations  of  the  act  in  relation  to 

'  See  Appendix,  p.  38.  '■'  See  Appendix,  p.  93. 


RENEWED    TERM,  IN    THE    UNITED  STATES.       215 

original  copyrights  be  complied  with  in  respect  to 
such  renewed  copyright,  and  that  within  six  months 
before  the  expiration  of  the  first  term.^  The  act 
further  requires  that  a  copy  of  the  record  of  renewal 
be  published  in  one  or  more  newspapers  printed  in 
the  United  States,  within  two  months  from  the  date 
of  such  renewal,  for  the  space  of  four  weeks.- 

'  See  Appendix,  p.  93.  *  ^  3^ 


CHAPTER  VIII. 

TRANSMISSION  OF  COPYRIGHT,  AND  OTHER  INCIDENTS 
OF  LITERARY  PROPERTY. 

The  law  of  England  and  that  of  America  recognize, 
as  we  have  seen,  the  exclusive  right  of  an  author  over 
his  own  productions  existing  in  manuscript.^  This 
right  is  independent  of  the  property  in  the  paper 
itself,  and  consists  in  the  exclusive  authority  to  print 
and  publish  the  literary  contents.  No  question  has 
ever  been  successfully  made  of  the  existence  of  this 
species  of  property,  whatever  disputes  have  arisen, 
from  time  to  time,  as  to  the  effect  upon  it  of  publi- 
cation and  sale. 

Literary  property,  in  unpublished  writings,  has 
always  been  a  well-settled  right  at  common  law.^ 

The  nature  of  this  property  has  been  defined  as 
"  an  incorporeal  right  in  the  nature  of  a  faculty,  and 
having  reference  to  a  future  time  for  reaping  the  pro- 
fits."^    Lord  Mansfield  described  it  as  "  a  nincor- 


•  Ante,  Chap.  II.  Richardson,  Amb.  694.    Southey  v. 

2  Millar  v.  Taylor,  4  Burr.  2398.  Sherwood,  2  Meriv.  434.     Whea- 

Donaldson   v.  Becket,    Ibid.   2408.  ton  t;.  Peters,  8  Peters  S.  C.  R.  591, 

Duke  of  Queensbury  v.  Shebbcare,  661.     2  Story's  Eq.  Jurisp.  ^  943. 

2  Eden's  Ch.  R.  329.     Macklin  v.  '  1  Bell's  Com.  68. 


INHERITANCE  OF  COPYRIGHT. 


217 


poreal  right  to  print  a  set  of  intellectual  ideas  or 
modes  of  thinking,  communicated  in  a  set  of  words 
and  sentences  and  modes  of  expression.  It  is  equal- 
ly detached  from  the  manuscript,  or  any  other  phys- 
ical existence  whatsoever."^ 

This  species  of  property  has  long  been,  and  is  at 
the  present  day  treated  as  an  inheritable  right.  The 
copy  in  Lord  Clarendon's  History,^  the  manuscripts 
of  a  Conveyancer,^  the  Letters  of  Lord  Chester- 
field,"* and  the  Writings  of  AVashington,^  were  sever- 
ally held  to  have  passed  to  personal  representatives, 


»  4  Burr.  2396.  His  Lordship 
there  said,  "  It  has  all  alonjr  been 
expressly  admitted,  '  that,  by  tlie 
coiHinon  law,  an  author  is  entitled  to 
the  copy  of  his  own  work  until  it 
has  been  once  printed  and  publish- 
ed by  his  authority  ;  '  and  '  that  the 
four  cases  in  chancery,  cited  for 
that  purpose,  are  agreeable  to  the 
common  law  ;  and  the  relief  was 
properly  given,  in  consequence  of 
the  legal  right.' 

"  The  property  in  the  copy  thus 
abridged,  is  equally  an  incoporeal 
right  to  print  a  set  of  intellectual 
ideas  or  modes  of  thinking,  commu- 
nicated in  a  set  of  words  and  sen- 
tences and  modes  of  expression.  It 
is  equally  detached  from  the  manu- 
script, or  any  other  physical  exist- 
ence whatsoever. 

"  Tiie  property  thus  abridged  is 
equally  incapable  of  being  violated 
by  a  crime  indictable.  In  like  man- 
ner, it  can  only  be  violated  by  an- 
other's printing  without  the  autbor's 
consent;    which  is  a  civil  injury. 

"  The  only  remedy  is  the  same  ; 
by  an  action  upon  the  case,  for  dam- 
ages, or  a  bill  in  equity  for  a  speci- 
fic relief. 

19 


"  No  action  of  detinue,  trover,  or 
trespass  qnare  vi  et  armis,  can  lie  ; 
because  the  copy  thus  abridged  is 
equally  a  properly  in  notion,  and  has 
no  corporeal  tantjible  substance. 

"  No  disposition,  no  transfer  of 
paper  upon  which  the  composition 
is  written,  marked,  or  impressed, 
(tiiough  it  gives  the  power  to  print 
and  publisli,)  can  be  construed  a 
conveyance  of  the  copy,  without  the 
author's  express  consent  '  to  print 
and  publish ;  '  much  less,  against 
his  will. 

"  The  property  of  the  copy,  thus 
narrowed,  may  equally  go  down 
from  generation  to  generation,  and 
possibly  continue  forever ;  though 
neither  the  author  nor  his  repre- 
sentatives should  have  any  manu- 
script whatsoever  of  the  work,  ori- 
ginal, duplicate,  or  transcript." 

*  Duke  of  Qucensbury  v.  Sheb- 
beare,  2  Kden's  C.  R.  3-"J. 

*  Webb  V.  Rose,  cited  4  Burr. 
2330. 

*  Thompson  v.  Stanhope,  Amb. 
737. 

'  Folsom  V.  ]Marsh,  2  Story's  K. 
100. 


218  LAW    OF    COPYRIGHT. 

with  the  sole  right  of  publication.  Indeed,  there 
seems  to  be  no  reason  why  the  remark  of  Lord  Mans- 
field is  not  strictly  true,  that  the  property  in  manu- 
script, being  the  incorporeal  right  to  print  a  set  of 
intellectual  ideas,  communicated  in  words  and  sen- 
tences, may  go  down  from  generation  to  generation, 
and  possibly  continue  forever;  though  neither  the 
author  nor  his  representatives  should  have  any  man- 
uscript copy  whatever  of  the  work,  original,  dupli- 
cate or  transcript.^ 

It  is  also  a  right  that  adheres  solely  to  the  person 
entitled  to  exercise  it,  so  long  as  he  does  not  see  fit 
to  alienate  it ;  and  it  cannot  be  seized  by  creditors, 
and  does  not  pass  to  assignees  under  a  bankruptcy.^ 
Being  detached  from  the  manuscript,  or  any  other 
physical  existence,  and  being  a  mere  incorporeal 
right  to  print,  or  to  withhold  from  printing — a  fa- 
culty, or  right  to  exercise  a  choice  —  it  would  seem 
to  be  beyond  the  reach  of  execution,  or  the  opera- 

'  See  Millar  v.  Taylor,  4  Burr,  against  such  a  rule  of  law,  because 

2397.     The  .5  and  6   Vict.  c.  45,  until   the  act  of  publication  is  ac- 

^  -25,  makes  all  copyriglit   personal  complishcd,   an   author  has  an  un- 

property,  transmissible  by  bequest,  doubted  right  to   have  full  control 

or,  incase  of  intestacy,  subject  to  over  it,"    [his  manuscript.]     God- 

tlie  same  law  of  distribution  as  other  son  on  Patents  and  Copyright,  2d 

personal  property,  and  in  Scotland  edition,  p.  430.     I'his  seems  to  be 

it  is  to   be   deemed  to  be  personal  merely  stating  the  same  proposition 

and  movable  estate.  in  a  different  form.    But  Lord  Mans- 

'  1  Bell's  Com   G8.     See  also  4  field's  exposition  of  the  real  basis 

Burr.    2.'i!)0,    2397.      Mr.    Godson  of  exclusive  property  before  publica- 

says,  "  it  is  doubtful  whether  an  un-  tion,  shows  that  Mr.  Godson  touches 

published  manuscript  can  be  taken  the  true  grounds  of  the  opinion,  that 

in   execution   by   creditors;"    and  such  property  does  not  pass  under 

cites  4  Burr.  2311,  where  the  ques-  a  commission   of  bankruptcy.     See 

tion  is  suggested  by  Lord  Mansfield  ante,  p.  85,  for  the  view  taken  by 

arguendo.    Mr.  Godson  adds  :  "but  Mr.  Bell,  upon  this  point, 
the  better  opinion  seems  to  incline 


PAROL    LICENSE    TO    PUBLISH.  219 

tioii  of  the  bankrii[)t  laws.  The  manuscript  itself 
may  possibly  be  taken  in  execution  ;  but  the  trans- 
fer of  the  manuscript  does  not  alone  carry  with  it  a 
conveyance  of  the  copy,  that  is,  the  authority  to 
print  and  publish.^  W  the  mere  paper  can  be  seized 
under  execution,  it  must  be  taken  subject  to  the  sole 
right  of  the  author  over  the  intellectual  ideas  that 
are  written  upon  it. 

The  author  or  pi'oprietor  of  a  manuscript  may,  by 
parol,  at  common  law,  license  another  to  print  and 
publish  it  ;  and  such  an  authority  may  possibly  be 
inferred  from  the  acts  of  the  parties."  But  there 
must  be  a  consent  proved,  and  such  consent  cannot 
be  Inferred  from  possession  of  the  manuscript  alone, 
even  if  there  be  but  a  single  copy  of  it  in  existence.'' 
There  are  so  many  other  purposes,  which  may  ac- 
count for  the  possession  of  a  manuscript,  without 
involving  an  authority  to  publish  it,  that  mere  pos- 
session would  have  a  very  slight  tendency  to  prove 
that  authority.  The  right  to  print  and  publish  be- 
ing a  right  detached  from  the  manuscript,  does  not 
necessarily  go  along  with  it,  and  therefore  its  trans- 
fer must  be  proved  by  farther  independent  evidence. 
Whether  the  sole  right  to  print  forever  the  contents 
of  an  unpublished  manuscript  can,  at  common  law, 
be  conveyed  by  parol,  so   that   the  copyright   will 


'  4  Burr.  239G.  beare,  2  I'^dcivs  Ch.  R.  329.    Pope 

'  Southey  c.  Sherwood,  2  Meriv.  v.  Curll,  2  Atk.  342.    2  Story's  E-i- 

434.   llunilell  v.  Murray,  Jacobs  R.  Jurisp.  «^S  342.    4  Burr.  23'J6.    Auto, 

311.  p.  217,  note  1. 
^  Duke  of  Queensbury  v.  Sheb- 


220  LAW    OF    COPYRIGHT. 

vest  in  the  person  who  may  be  thus  authorized  to 
publish,  is  a  point  admitting  of  great  doubt.     But  it 
seems  that  under  the  statutes,  in  England,  an  assign- 
ment in  writing  has  been  held  necessary  to  pass  the 
copyright  in   an  unpublished  work.     The  8  Anne, 
c.  19,  §  1,  declared  that  "the   author  and  his  as- 
signee or  assigns  shall  have  the  sole  liberty  of  print- 
ing," and  that  "  if  any  other  bookseller,  printer,  or 
other  person,  &lc.  shall  print,  reprint,  &c.  without 
the  consent  of  the  proprietor  first  had  and  obtained  in 
writing,  signed  in  the  presence  of  two  or  more  credible 
witnesses,  he  shall  forfeit,"'  &c.     Upon  this  statute, 
Lord  Macclesfield,  C.  is  said  to  have  held,  that  the 
author  might  grant  the  right  of  the  copy  to  a  subse- 
quent publisher,  after  it  had  been  once  published  by 
the  person  to  whom  he  had  originally  delivered  the 
manuscript,  the  bare  delivery  amounting  only  to  a 
license  to  print  the  first  edition.^     In  a  more  modern 
case,  Lord  Ellenborough  said,  that  "the  statute  having 
required  that  the  consent  of  the  proprietor,  in  order 
to  authorize  the  printing  or  reprinting  of  a  book  by 
any  other  person,  shall  be  in  writing,  the  conclusion 
from  it  seemed  irresistible  that  the  assignment  must 
also  be  in  writing  ;  for  if  the  license,  which  is  the 
lesser  thing,  must  be  in  writing,  a  fortiori  the  assign- 
ment,  which  is  the  greater  thing,  must   also  be." 
The  plaintiff,  who  claimed  as  an  assignee,  was  there- 
fore nonsuited."     This  decision,  whether  correct  or 

'  Viner's  Abr.  278.  7.     It  must  be  owned  that  this  rea- 

2  Power  V.  Walker,  3  M.  &  S.     soning  is  not  satisfactory.   Thestat- 


PAROL    LICENSE    TO   PUBLISH.  221 

not,  has  been  since  followed,  and  the  settled  con- 
struction of  this  and  the  subsequent  act  54  Geo.  III. 
c.  156,  is,  that  a  parol  assignment  is  not  suflicient  to 
give  to  the  assignee  the  privileges  conferred  by  the 
legislature  upon  the  author.^ 

The  act  5  and  6  Vict.  c.  45,  §  15,  declares,  that  "  if 
ani/  person  shall,  in  any  part  of  the  British  domin- 
ions, print  or  cause  to  be  printed,  either  for  sale  or 
exportation,  any  book  in  which  there  shall  be  sub- 
sisting copyright,  ivithout  the  consent  in  writing  of  the 
proprietors,  &c.  he  shall  be  liable,"  &.c.  This  evinces 
a  clearer  intention,  that  all  transfers  of  copyright 
shall  be  in  writing,  than  appeared  from  the  former 
acts  ;  and  the  provisions  of  the  13th  section,  which 
provide  a  mode  of  transfer  by  a  memorandum  to  be 
made  in  the  books  of  the  stationers'  company,  to  be 
of  the  same  force  and  effect  as  if  made  by  deed,  show 
the  understanding  of  parliament  as  to  the  previously 
existing  law. 

The  question  recurs,  then,  what  does  the  party 
acquire,  as  against  the   author  and    the   public,  at 

ute  does  not  require  that  the  license  Bland,  2  Starkie's  N.  P.  C.  382,  it 

to  any  other  person  than  the  aullior  was  held,  that  a  jmblicatiou  for  six 

shall  be  in  writing,  but  it  declares  years,  by  a  person   (not  the  eom- 

thai  no  other  person  than  tlie  author  poser)  of  music,  was  not  sulFicient 

and  Ins  assignee  shall  print  without  in  itself  to  prove  that  the  copyrijTht 

a  license  in  writing.     Tiic  question  had  been  transferred;  and  liiai  the 

turns   upon  tiie  -force  of  the  word  receipt  of  tlic  proprietor  for  the  price 

assignee,  and  the  general  intention  of  the  copyright  would  not  bar  tlie 

oftheact.     Seealso  S.  C.  4Campb.  action.     Kut  where  a  copyright  in 

8.  music  was  not  asserted  against  vio- 

•  Clcmenti  v.  Walker,  2  B.  &C.  lation  for  fifteen  years,  tlie  court  of 

861.    Power  i\  Walker,  .S  Maule  &  chancery  refused  an  injunction  until 

Selw.   i>.      13arnctt   v.   Glassop,    1  the  riglit  should  be  established  at 

Bing.   N.   C.  1)33.      In   Latour  v.  law.     Piatt  v.  Button,  19  Ves.  U?. 

19* 


222  LAW    OF    COPYRIGHT., 

common  law,  who  receives  a  manuscript  from  the 
author,  under  a  parol  license  to  publish  it,  no  assign- 
ment in  writing  being  made  of  the  copyright  ?  In 
the  first  place,  it  seems  to  be  admitted  that  an  au- 
thor may  dedicate  his  work  to  the  public,  and  that 
such  a  dedication  may  be  inferred  from  long  silence, 
from  the  absence  of  any  conveyance  of  the  property, 
from  long  acquiescence  in  its  publication  by  various 
persons,  and  other  circumstances.^  In  the  second 
place,  an  author  may,  by  unequivocal  acts  of  a  like 
nature,  dedicate  his  work  to  an  individual.  Thus, 
where  the  plaintiff  gave  her  manuscript  to  a  pub- 
lisher, with  a  parol  license  to  publish  it  at  his  own 
risk  and  expense,  and  disclaimed  any  intention  to  re- 
ceive any  emolument  from  it,  and  the  defendant  pub- 
lished it  for  fourteen  years  (the  first  term  under  the 
statute  then  in  force)  and  continued  to  publish  and 
sell  it  afterwards,  and  the  plaintiff  then  tipplied  for 
an  injunction  to  restrain  its  farther  publication  by 
the  defendant  ;  Lord  Eldon  refused  the  injunction, 
upon  the  ground  that  the  defendant  had  been  licensed 
to  publish  without  any  limitation  of  time." 

In  this  case,  the  question  was  left  undecided, 
whether  the  right  to  publish  did  not  remain  in  the 
plaintiff  concurrently  with  the  defendant,  or  whether 
the  defendant  had  acquired  any  right  as  against  the 
public.     The  defendant  declined  an  offer  made  by 


>  4  Burr.  2245,  2346.     Piatt  v.     v.  Murray,  Jacobs  R.  311,  316. 
Button,    19  Ves.  447.     Folstim  v.        "  Rundell  v.  Murray,  Jacobs  R. 
Marsh,  2  Story's  R.  109.     Rundell     311. 


PAROL    LICENSE    TO    PUBLLSII.  223 

the  court  to  try  his  title  to  the  copyright,  and  his 
counsel  expressly  disclaimed  any  such  title,  admit- 
ting that  there  was  no  legal  assignment  of  it.'  The 
case  therefore  proceeds  upon  the  effect  of  a  parol 
license  to  publish,  and  admits  that  such  a  license 
conveys  no  copyright  to  the  exclusion  of  the  author. 
Under  such  circumstances,  the  rights  acquired  by 
a  publisher  under  a  parol  license  depend  upon  the 
fact  of  there  being  or  not  being  a  limitation  in  point 
of  time,  in  the  license  itself.  If  there  is  no  limita- 
tion as  to  time,  the  inference  is  admissible  that  the 
author  gave  a  concurrent  authority  to  publish  indefi- 
nitely. But  the  inference  does  not  go  beyond  a 
concurrent  authority.  There  can  be  no  presumption 
that  the 'author  intended  to  convey  the  copyright, 
for  the  law  requires  that  to  be  in  writing  ;  and  there 
have  been  cases  where  such  a  presumption  has  been 
rejected."  These  cases  show  that  the  author  retains 
the  copyright,  where  there  has  been  no  assignment 
in  writing,  and  may  defend  it  by  action  or  injunction 
against  his  licensee,  where  the  license  was  not 
indefinite  in  point  of  time.^  But  it  seems  that  a  con- 
veyance of  the  copyright  may  be  proved  by  the  de- 
fendant's admissions  that  he  has  conveyed  it,  although 
he  does  not  refer  to  the  mode  of  the  conveyance. "^ 


'  Rundell  v.  Murray,  Jacobs  R.         ^  Ibid. 
312,  31G.  ■•  Power  v.  Walker,  4  Campb.  9, 

*  Slorace  v.  Loii^inaii,  '2  Campb.     note. 
27,  n.     Latour  v.  Bbmd,  2  Starkic's 
N.  P.  C.  382.     Power  v.  Walker, 
4  Campb.  8. 


224 


LAW    OF    COPYRIGHT. 


As  a  mere  licensee,  therefore,  a  publisher  under  a 
parol  license  can  maintain  no  action  at  law  against  a 
third  person,  because  he  has  no  legal  title. ^  But 
according  to  the  modern  doctrine,  he  may,  if  he  have 
a  clear  equitable  title,  maintain  a  bill  for  an  injunc- 
tion against  any  other  person  than  the  author,  or  his 
assignee.^  And  where  the  party  claims  as  assignee 
of  an  assignee,  he  will  not,  in  equity,  be  put  to  pro- 


'  Power  V.  Walker,  4  Campb. 
9,  n.  There  is  a  dictum  of  Lord  El- 
lenborouffh,  to  the  effect  that  the 
first  i)ublisher  of  a  book,  however 
he  procured  the  copy,  has  such  a 
property  that  he  may  bring  an  ac- 
tion at  law  against  any  person  pirat- 
ing it.  Gary  v.  Kearslev,  4  Esp. 
N.  P.  C.  168,  169.  Mr.  Godson 
cites  this  case  as  authority  for  the 
same  position.  Godson  on  Patents 
and  Copyright,  2d  ed.  p.  427.  The 
book  in  question  was  Gary's  Road 
Book.  The  defendant's  counsel  ex- 
amined a  witness,  an  officer  of  the 
post-office,  to  prove  that  the  survey 
stated  to  have  been  made  by  the 
plaintiff  was  at  the  expense  of  the 
post-office,  in  order  to  show  that  the 
copyright  belonged  to  the  post-office 
and  not  to  the  plaintiff,  l^ord  El- 
lenborough  said,  "  I  do  not  know 
that  that  will  protect  the  defendant ; 
at  law,  the  first  publisher,  even 
though  he  has  abused  his  trust,  by 
frocuring  the  copy,  has  a  right  to  it, 
and  to  an  action  against  a  person 
■who  publishes  it  without  authority 
from  him.  It  may  be  a  ground  in 
equity,  as  between  the  person  enti- 
tled and  the  person  who  first  pub- 
lished it ;  but  it  does  not  destroy  the 
right  of  the  latter  to  sue  a  person 
pirating  that  right."  I  do  not  un- 
derstand this  to  be  law,  as  broadly 
stated.     All  copyright  depends  on 


title  derived  from  the  author;  and 
unless  there  has  been  a  transmission 
of  title  from  liim,  the  publisher  can 
maintain  no  action  for  piracy,  though, 
under  some  circumstances,  he  may 
obtain  an  injunction. 

"  Mawman  v.  Tegg,  2Iluss.  385. 
Sweet  V.  Shaw,  3  Jurist,  217.  2 
Story's  Eq.  Jurisp.  (^  935.  The 
im|)olicy  of  suffering  literary  works 
to  be  published  under  parol  agree- 
ments, and  the  fatality  of  the  sup- 
position, that  a  copyright  can  be  con- 
veyed without  writing,  were  strong- 
ly illustrated  in  the  case  of  some  of 
Mr.  Moore's  Irish  I\Ielodies.  Mr. 
Moore  sold  his  work  to  W.  Power, 
of  Dublin,  who  agreed  verbally  with 
J.  Power,  of 'London,  his  brother, 
that  he  (J.  Power)  should  have  the 
sole  ptiblication  and  sale  of  it  in 
England  ;  J.  Power  brought  an  ac- 
tion on  the  8  Anne,  c.  19,  against 
one  Walker  for  pirating  the  words 
of  two  of  the  songs,  and  was  non- 
suited for  want  of  a  legal  title,  be- 
ing a  mere  licensee.  Mr.  Moore, 
the  author,  then  brought  an  action 
in  his  own  name  against  the  same 
defendant,  for  the  same  piracy,  and 
was  nonsuited,  because  he  had  been 
heard  by  some  of  the  witnesses  to 
say,  that  lie  had  parted  with  all  his 
interest  in  the  copyright  to  W.  Pow- 
er. See  4  Gampb.  8,  9,  n.  But  see 
Nicol  V.  Stocdale,  3  Svvanst.  687. 


EQUITABLE    TITLE.  225 

duce  the  original  assignment  to  his  assignor,  but  the 
proof  of  want  of  title  will  be  thrown  on  the  defend- 
ants.' 

An  equitable  title,  which  will  support  a  bill  for  an 

injunction,  occurs,  where  the  legal  right  has  not 
been  vested,  but  from  the  dealings  between  the  ac- 
tual owner  and  the  party  bringing  the  bill,  such  par- 
ty has  acquired  a  limited  etjuitable  right  in  the  copy- 
right, to  the  extent  of  being  entitled  to  be  one  of  the 
publishers,  or  the  sole  publisher  of  the  work,  for  a 
given  or  an  indefinite  time.  But  it  is  necessary  that 
the  party  should  have  a  real  interest  in  the  work, 
and  not  be  a  mere  agent  to  sell  it.  Thus,  where  a 
publisher  was  employed  by  the  board  of  admiralty, 
under  direction  of  the  crown,  to  publish  a  work, 
consisting  of  a  narrative  of  a  voyage  undertaken  by 
persons  employed  for  that  purpose  by  the  crown, 
but  the  profits  were  to  be  at  the  disposal  of  the  lords 
of  the  admiralty,  it  was  held,  that  the  publisher  had 
not  such  an  interest  in  the  work  as  would  enable 
him  to  sustain  an  injunction  against  another  person 
for  republishing  it.~  But  where  it  was  agreed,  in 
writing,  between  an  author  and  a  publisher,  (after 
reciting  that  the  author  had  prepared  a  tenth  edition 
of  his  work,  and  the  publisher  was  desirous  o( pur- 
chasing the  same,)  that  a  certain  printer  should  print 
a  given  number  of  copies,  and  the  publisher  should 
pay  to  the  author  for  the  said  tenth  edition  a  certain 


'  I\Iorris  r.  Kcllcy,  1  Jac.  &W.         *  Nicol  v.  Stockdale,  3  Swausl. 
481.  687. 


226 


LAW    OF    COPYRIGHT. 


sum,  and  that  the  work  should  be  sold  to  the  public 
for  a  given  price,  it  was  held  that  the  publisher  was 
not  a  mere  licensee  to  sell  a  given  number  of  copies, 
but  that  being  bound  by  the  agreement  to  sell,  and 
the  author  being  bound  to  abstain  from  doing  any- 
thing which  would  interfere  with  the  sale,  the  pub- 
lisher had  a  limited  equitable  interest  in  the  copy- 
right, to  the  extent  of  being  entitled  to  be  the  sole 
publisher,  until  the  number  of  copies  fixed  by  the 
terms  of  the  agreement  should  be  exhausted.^ 

It  is  not  settled  in  England,  whether  a  convey- 
ance of  copyright  must  be  by  deed,  as  well  as  in 
writing.  The  cases  which  have  held  that  a  transfer 
in  writing  is  necessary,  did  not  decide  whether  a 
writing,  not  being  a  deed,  would  be  sufficient.^  In 
a  more  recent  case.  Lord  Ch.  J.  Tindal  expressed 
an  opinion  that  nothing  short  of  a  deed  would  an- 
swer ;  but  the  pleadings  did  not  admit  of  the  ques- 
tion being  raised.^  The  act  5  and  6  Vict.  c.  45, 
s.  13,  which  makes  an  assignment  by  entry  in  the 
register  as  valid  as  if  it  had  been  made  by  deed,  has 
been  supposed  to  show  the  understanding  of  parlia- 
ment, that  the  usual  and  necessary  mode  of  transfer 
of  copyright  is  by  deed.^ 

The  preceding  observations  may  aid  us  in  deter- 
mining the  effect  of  the  contracts  which  ordinarily 


'  Sweet  V.  Cater  et  al.  5  Jur.  08,  "  Power  v.  Walker,  4  Campb.  8. 

cited  Drewry  on  Injunctions,  p.  211.  Clementi  v.  Walker,  2  H.  &  C.  861. 

See  also  Mawman  v.  Tegg,  2  Russ.  ^  De  Pinna  v.  Polhill,  8  Car.    & 

392.     Sweet  v.  Shaw,   17  Law  J.  P.  p.  78. 

216.  ■*  See  Appendix,  p.  70. 


ESSAYS    OR    ARTICLES    IN    REVIEWS.  227 

take  place  between  the  writers  of  articles  for  mai^a- 
zines,  and  other  periodical  works,  and  the  proprie- 
tors of  such  works.     Does  the  mere  transmission  of 
a  manuscript  essay  or  article  to  the  conductor  of  a 
magazine,  for  publication,  coupled  with  the  receipt 
of  such   compensation  as  may  be  paid  for  it,  carry 
with  it  the  whole  title  of  the  copyright,  so  as  to  ex- 
clude the  author  from  reprinting  it  in  any  other  form 
thereafter  ?     There  is,  doubtless,  an  implied  con- 
tract on  the  part  of  the  writer,  not  to  reprint  his 
essay  at  such  a  time,  or  in  such  a  manner,  as  to  de- 
prive  the  party  who  has  purchased  the   liberty   of 
printing  it,   of  the  benefit   of  being   the   sole  pub- 
lisher thereof,  for  a  reasonable  length  of  time,  which 
must    depend   on    the    circumstances    of    the    case. 
Hence,  the  writer  could  not,  without  a  breach  of  his 
implied  contract,  print  his  essay  in  another  period- 
ical, published    simultaneously  with    the    work   for 
which  he  had  originally  written  it.     But  where  the 
law  requires  a  written  assignment  of  copyright,  and 
no  such  assignment  has  been  made,  and  there  is  no 
stipulation  on  the  part  of  the  writer  never  to  re-print 
his  essay,  it  would  seem  that  the  right  to  republish 
it,  after  a  reasonable  time,  must  remain  with  him  at 
common  law.     But  whether  the  projector  and  pi-o- 
prietor  of  a  work,  in  which   different  persons  have 
written  parts,  at  his  request,  and  have  been  paid  for 
the   same   as   contributors,  without  having  made  a 
legal  assignment  of  their  copyrights,  is  to  be  deemed 
the  author  and  proprietor  of  the  work,  so  as  to  en- 


228  LAW    OF    COPYRIGHT. 

title  him  to  protection  as  against  the  public,  is  a 
different  question.  This  point  came  before  Sir  John 
Leach,  V.  C,  and  he  was  of  opinion  that  such  a  pro- 
jector and  proprietor  was  to  be  deemed  the  author 
and  proprietor  within  the  intendment  of. the  statute 
of  Anne,  for  the  purposes  of  protection  in  a  court 
of  equity.^ 

Perhaps  the  provisions  of  the  recent  English  stat- 
ute on  this  subject  may  be  regarded  as,  in  part,  de- 
claratory of  the  previously  existing  la^v.  Those  pro- 
visions are  made  retrospective  ;  manifesting  thereby 
an  intention  to  apply,  by  statute,  to  previously  ex- 
isting rights,  principles  understood  to  be  already  in 
existence,  upon  which  the  contracts  might  be  pre- 
sumed to  have  been  made.  The  statute  declares,  in 
substance,  that  where  essays,  articles,  &c.  have  been 
or  shall  be  written  for  publication  in,  or  as  part  of 
any  encyclopedia,  review,  magazine,  periodical  work, 
or  work  published  in  a  series  of  books  in  parts,  or 
any  book  w^hatsoever,  on  the  terms  that  the  copy- 
right   therein   shall  belong  to  the  proprietor,  pro- 


*  Barfield  v.  Nicholson,  2  Law  it,  is  the  author  and  proprietor  of  the 
Jonrn.  00,  102.  In  this  case,  the  work,  if  not  within  the  literal  ex- 
vice  cliaiicellor  said,  "lamofopin-  pression,  at  least,  within  the  equi- 
ion,  that,  under  that  statute  [8  Anne,  tahle  meaning  of  the  statute  of 
c.  19]  the  person  who  forms  the  plan,  Anne,  which,  being  a  remedial  law, 
and  who  embarks  in  the  specula-  is  to  be  construed  liberally."  S.  C. 
tion  of  a  work,  and  who  employs  2  Sim.  &  Stvi.  1.  As  to  the  pro- 
various  persons  to  compose  different  perty  in  a  review,  and  the  right  to 
parts  of  it,  adapted  to  their  own  pe-  prevent  the  publication  of  works 
culiar  acquirements  —  that  he,  the  handed  out  to  the  public  under  false 
person  who  so  forms  the  plan  and  colors,  as  continuations  of  a  former 
scheme  of  the  work,  and  pays  differ-  established  work,  sec  Hogg  v.  Kir- 
ent  artists  of  his  own  selection,  who,  by,  8  Ves.  215. 
upon  certain  conditions,  contribute  to 


CONTRA.CTS  BETWEEN   AUTHORS  AND  PUBLISIIEKS.  229 

jector,  publisher  or  conductor  of  the  work,  and  paid 
for  by  such  proprietor,  &L2.  the  copyright  thereof 
shall  be  the  property  of  such  proprietor,  &,c.  who 
shall  enjoy  the  same  rights  as  if  he  were  the  actual 
author  thereof,  and  shall  have  such  term  of  copy- 
right therein  as  is  given  by  the  act  to  the  authors  of 
books  ;  except  that  in  the  case  of  essays,  articles, 
&c.  forming  part  of,  or  first  published  in  reviews, 
magazines,  or  other  periodical  works  of  a  like  nature, 
after  the  term  of  twenty-eight  years  from  the  first 
publication  thereof  respectively,  the  right  of  pub- 
lishing the  same  in  a  separate  form  shall  revert  to 
the  author  for  the  remainder  of  the  term  given  by 
the  act,  provided,  that  during  the  twenty-eight  years, 
the  proprietor  of  the  review,  magazine,  &c.  shall  not 
publish  any  such  essay,  article,  &c.  separately  or 
singly,  without  the  consent  of  the  author  or  his  as- 
signs previously  obtained  ;  and  provided  also,  that 
these  enactments  shall  not  affect  the  rights  of  any 
such  author,  who,  by  any  contract,  express  or  im- 
plied, may  have  reserved,  or  shall  reserve  to  him- 
self the  right  of  separate  publication  ;  but  that  every 
author,  so  reserving  the  right  of  separate  publica- 
tion, shall  have  the  copyright  in  his  composition, 
when  published,  in  a  separate  form,  according  to  the 
act,  without  prejudice  to  the  right  of  the  proprietor 
of  the  review,  magazine,  &c.^ 

There  have  been  several   decisions  in   England, 


•  Act  5  &  0  Vict.  c.  45,  ^  18.     Sec  Appendix,  p.  73. 

20 


230  LAW    OF    COPYRIGHT. 

upon  contracts  between  authors  and  publishers, 
which  may  illustrate  the  subject  at  present  under 
consideration.  Where  an  author  agreed,  in  writing, 
to  supply  a  bookseller  with  the  manuscript  of  a  work 
to  be  printed  by  the  latter,  the  profits  to  be  equally 
divided  between  them.  Lord  Ellenborough  held  that 
an  action  could  be  maintained  for  damages  for  refus- 
ing to  supply  the  manuscript.'  But  where  an  au- 
thor was  engaged  for  a  certain  sum,  to  write  an  arti- 
cle, to  appear  among  others  in  a  work  called  "  The 
Juvenile  Library,"  and  before  he  had  completed  his 
article,  and  before  any  portion  of  it  was  published, 
the  work  in  which  it  was  to  appear  was  discontinued, 
Lord  C.  J.  Tindall  held,  that  the  publishers  were 
not  entitled  to  claim  the  completion  of  the  article,  in 
order  that  it  might  be  published  in  a  separate  form 
for  general  readers,  but  were  bound  to  pay  the  au- 
thor a  reasonable  sum  for  the  part  which  he  had  pre- 
pared.^ The  contract  in  this  case  does  not  appear 
to  have  been  in  writing. 

AVhere  an  author  sells  the  copyright  of  a  work 
published  under  his  own  name,  and  covenants  with 
the  purchaser  not  to  publish  any  other  work  to  pre- 
judice  the  sale   of  it  ;   it  seems,  that  another  pub- 


'  Gale  V.  Lcckie,  2  Stark.  N.  P.  other  theatre,  is  lawful,  as  a  similar 

C.  107.     But  if  the  author  be  justly  restraint  of  a  performer  would  be  ; 

apprehensive  that  the   work,  when  not  resembling  a  covenant  restrain- 

published,  will  subject  him  to  pun-  ing  trade  generally.     Morris  v.  Col- 

ishment,  it  seems  that  he  may  re-  man,  18  Ves.  437. 

fuse  to  deliver  the  manuscripts.    Ih.  *  Planch6  v.  Colburn,  5  C.  &  P. 

A  contract  with  the  proprietors  of  a  58. 
theatre,  not  to  write  pieces  for  any 


ASSIGNMENT    OF    PLAYS,  MUSIC,  ETC,  231 

lisher,  wlio  has  no  notice  of  this  covenant,  may  be 
restrained  from  publishing  a  work  subsequently  pur- 
chased by  him  from  the  same  author,  and  published 
under  his  name,  on  the  same  subject,  but  under  a 
different  title,  and  though  there  be  no  piracy  of  the 
first  book.^ 

But  in  an  action  by  several  plaintiffs,  for  piracy  of 
copyright,  it  appeared  that  the  defendant,  the  au- 
thor, had  published  the  work  in  question  pursuant  to 
the  conditions  of  a  cognovit  given  by  him  to  one  of 
the  plaintiffs  and  another  person,  in  an  action  for  not 
performing  an  agreement  to  write  the  work  in  ques- 
tion ;  and  it  was  held  that  this  was  a  sufficient  de- 
fence.- 

Although  the  interest  in  a  manuscript  does  not 
pass  to  assignees  under  a  commission  of  bankruptcy, 
yet  the  copyright  of  a  printed  book  does  so  pass  ; 
and  it  seems  that  it  is  not  necessary  that  there  should 
be  any  instrument  in  writing  between  the  bankrupt 
and  his  assignees.^ 

The  provisions  of  the  act  5  and  6  Vict.  c.  45,  with 
regard  to  the  assignment  of  copyright,  apply  to  dra- 
matic and  musical  compositions,  as  well  as  books. 
The  assignment  of  the  copyright  of  a  play  was  for- 
merly held  to  have  carried  with  it  the  sole  right  of 
representation  also,  which  was  secured  to  the  author 


'  Barfield  V.  Nicholson,  2  Sim.  &  ^  Mawman  v.  Tegg,  2  Russ.  R. 

Stu.  1.     2  Law  Journal,  90.  385,392.     Keener.   Harris,  cited 

*  Sweet  et  al.   v.  Archbold,    10  17  Ves.  .S38.     Longman  r.  Trijip, 

Bing.  H.  133.  2  New  R.  G7. 


232  LAW    OF    COPYRIGHT. 

by  the  3  Wm.  IV.  c.  15.^  But  in  order  to  obviate 
the  effect  of  this  decision,  it  is  now  provided,  that  no 
assignment  of  the  copyright  of  any  book  consisting  of 
or  containing  a  dramatic  piece  or  musical  composi- 
tion, shall  be  holden  to  convey  to  the  assignee  the 
right  of  representing  or  performing  such  dramatic 
piece  or  musical  composition,  unless  an  entry  in  the 
registry  book  shall  be  made  of  such  assignment  ; 
wherein  shall  be  expressed  the  intention  of  the  par- 
ties, that  such  right  should  pass  by  the  assignment.^ 

As  to  prints  and  engravings,  it  being  enacted  by 
the  8  Geo.  II.  c.  13,  §  1,  that  before  a  print  can  be 
copied  with  impunity,  the  consent  of  the  proprietor 
must  be  given  in  writing,  signed  in  the  presence  of 
two  witnesses,  it  is  manifestly  necessary  to  a  valid 
assignment,  in  England,  that  it  should  be  in  writing. 

The  fourth  section  of  the  54  Geo.  III.  c.  56,  pro- 
vides, that  "  no  person  who  may  purchase  the  right 
or  property  of  a  new  and  original  sculpture  or  other 
matter  above  mentioned  of  its  proprietor,  by  deed  in 
writing,  signed  by  such  proprietor  in  the  presence 
of  and  attested  by  two  witnesses,  shall  be  subject  to 
any  action  for  copying,  casting,  or  vending  the 
same."  The  assignment  of  copyright  in  sculpture 
must  therefore  be  by  deed  signed  in  the  presence  of 
two  witnesses,  and  attested  by  them. 

In  the  United  States,  the  act  30th  June,  1834,  §  1, 
provides,  that   all  deeds  or  instruments   in  writing, 

'  Cumberland  v.  Planche,   1  Ad.         *  Act  5  &  6  Vict.  c.  45,  §  22. 
&  Ellis,  580. 


GENERAL    ASSIGNMENT.  233 

for  the  transfer  or  assignment  of  copyrights,  being 
proved  or  acknowledged  in  such  manner  as  deeds 
for  the  conveyance  of  land  are  required  by  law  to  be 
proved  or  acknowledged  in  the  same  state  or  dis- 
trict, shall  and  may  be  recorded  in  the  office  where 
the  original  copyright  is  deposited  and  recorded  ; 
and  every  such  deed  or  instrument  that  shall  in  any 
time  hereafter  be  made  and  executed,  and  which 
shall  not  be  proved  or  acknowledged  and  recorded  as 
aforesaid,  within  sixty  days  after  its  execution,  shall 
be  judged  fraudulent  and  void  against  any  subsequent 
purchaser  or  mortgagee  for  valuable  consideration 
without  notice.^ 

This  statute  seems  to  recognize  the  doctrine,  that 
transfers  or  copyright  must  be  in  writing,  but  it  does 
not  expressly  declare  that  they  shall  be  so.  It  ap- 
plies to  all  kinds  of  literary  property  which  can,  in 
this  country,  be  the  subjects  of  copyright. 

As  to  what  passes  by  a  general  assignment  of  co- 
pyright, it  is  to  be  observed,  that,  after  the  publica- 
tion of  a  book,  the  exclusive  right  to  print  and 
reprint  it,  or  the  estate  of  copyright,  as  it  may  be 
called,  becomes  a  right  for  such  term  only  as  is  pro- 
vided by  statute.  In  the  United  States,  as  was  for- 
merly the  case  in  England,  the  statutes  secure  a 
resulting  or  contingent  term  to  the  author,  in  case 
he  shall  be  living  at  the  time  of  the  expiration  of  the 
first  term ;  and  if  the  author  be  not  living  at  the 


'  Act  of  Congress,  30th  June,  1834,  ^  1.     See  Appendix,  p.  100. 

20* 


234  LAW    OF    COPYRIGHT. 

expiration  of  the  first  term,  the  second  term  goes  to 
his  widow,  child,  or  children,  if  living.^  By  a  gene- 
ral assignment  of  copyright,  it  is  clear  that  the  whole 
of  the  author's  interest  for  the  first  term,  passes  to 
his  assignee  ;  but  whether  the  resulting  or  second 
term  passes,  so  as  to  exclude  the  author  and  his  re- 
presentatives, and  to  enable  the  assignee  to  secure 
such  term  by  complying  with  the  directions  of  the 
statute  concerning  the  renewal  of  the  copyright,  is  a 
question  of  some  difficulty.  In  England,  upon  the 
statute  8  Anne,  c.  19,  which  gave  a  second  term  of 
fourteen  years  to  the  author,  if  living,  at  the  end  of 
the  first  term,  it  was  held  that  a  general  assignment 
of  all  the  author's  "interest"  in  a  copyright  con- 
veyed the  contingent  as  well  as  the  present  interest.^ 
In  the  United  States,  in  a  case  where  a  publisher 
agreed  with  an  author,  that  the  latter  should  prepare 
a  certain  book  for  the  press,  and  the  publisher  en- 
gaged to  pay  the  author  a  certain  sum  "  for  the 
copyright  of  the  said  book,"  it  was  held,  that  the 
resulting  term,  under  the  statute,  did  not  pass  to  the 
publisher,  and  that  the  word  "  copyright"  embraced 
only  the  term  then  capable  of  being  secured,  which 
at  the  time  of  the  contract  constituted  the  copyright 
of  the  book.^ 

'  Act  Feb.  3d,  1831,  ^  1,  2.  of  his  surviving  the  fourteen  years, 

*  Carnan  v.  Bowles,  2  I3ro.  C.  R.  unless  the  assignment  is  so  express- 

80,  and  Rennet  v.  Thompson,  there  ed  as  to  purport  to  pass  it." 
cited.     Godson,  p.  429, 2d  edit.     In        ^  Per  Woodl)ury,  J.  in  Pierpont 

Rundell  v.  Murray,  Jacobs  R.  315,  v.  Fowle,   Circuit  of  tlic  U.  States, 

Lord  Eldon  said,  "I  conceive  that  at  Boston,  May  Term,  1847.    Seel 

an  author  will  not  be  taken  to  have  Woodbury's  R. 
assigned  his  contingent  right  in  case 


GENERAL    ASSIGNMENT.  235 

In  like  manner,  the  question  may  arise,  whether 
a  general  assignment  of  copyright,  by  the  author, 
will  deprive  his  representatives  of  the  additional 
term  of  fourteen  years,  given  by  the  act  of  congress 
of  3d  February,  1831,  §  2;  or  whether  the  author 
himself  has  any  power  over  this  additional  term,  so 
far  as  the  interests  of  his  representatives  are  con- 
cerned. The  statute  provides  that  the  author,  if 
living  at  the  expiration  of  the  first  term  of  twenty- 
eight  years,  shall  have  a  further  term  of  fourteen 
years,  on  making  a  new  entry  for  that  purpose. 
This  contingent  interest  the  author  may  undoubtedly 
assign.  But  if  the  author  is  not  living  at  the  end  of 
the  first  term,  the  additional  term  vests  in  his  widow 
and  child,  or  children,  living  at  the  time.  It  is  not 
easy  to  see  how  the  author  can  dispose  of  this  inter- 
est. It  is  not  created  for  him,  but  for  his  family  ;  it 
vests  only  in  case  of  his  death,  and  the  policy  of  the 
statute,  it  seems  to  me,  has  removed  it  from  his  con- 
trol.^ 

'  See  Appendix,  p.  93. 


CHAPTER   IX. 

INFRINGEMENT    OF    COPYRIGHT. 

Having  considered  the  nature  and  duration  of  that 
species  of  property  which  is  protected  under  the 
denomination  of  copyright,  we  have  now  to  treat  of 
its  violation,  in  the  various  forms  of  which  the  law 
has  taken  cognizance,  and  for  which  it  has  provided 
a  remedy.  It  is  obvious,  that  this  species  of  pro- 
perty must  be  exposed  to  a  great  variety  of  injuries, 
some  of  which,  from  their  subtle  and  ingenious  char- 
acter, may  elude  the  meshes  of  the  law.  But  the 
principles  on  which  this  kind  of  property  depends, 
and  the  doctrines  which  are  already  well  established 
in  English  and  American  jurisprudence,  will  be 
found  hereafter,  when  fully  carried  out,  to  extend  an 
adequate  and  just  protection  to  literature,  even  if 
such  protection  is  not  now  administered  with  all  the 
success  that  could  be  desired.  In  endeavoring  to 
trace  the  just  scope  of  these  principles  and  doctrines, 
we  must  bear  in  mind  that  while  the  primary  object 
of  the  law  of  copyright  is  protection  to  the  product 
of  all  literary  labor,   the  interests  of  knowledge  de- 


INFRINGEMENT    OF    COPYRIGHT.  237 

mand  a  reasonable  freedom  in  the  use  of  all  antece- 
dent literature.  To  administer  the  law  in  such  a 
manner  as  not  to  curtail  the  fair  use  of  existing  ma- 
terials, in  any  department  of  letters,  is  one  of  the 
great  tasks  of  jurisprudence.  It  proposes  to  itself, 
first,  the  vindication  of  rights  acquired  by  genius, 
discovery,  invention,  and  labor,  in  the  productions 
of  the  mind  ;  secondly,  the  acknowledgment  upon 
motives  of  public  policy,  of  the  right  to  a  ftur  use  by 
any  writer  of  all  that  has  been  recorded  by  previous 
authors.  The  discovery  and  application  of  the  rules 
which  are  to  determine  what  such  a  fair  use  is,  in  a 
given  case,  is  one  of  the  most  difficult  of  legal  pro- 
blems. Questions  of  this  nature  have  justly  been 
said  to  belong  to  the  metaphysics  of  the  law.  But 
the  law  would  ill  deserve  the  name  o'"  a  science,  if 
its  professors  were  unable  to  discharge  the  duties 
which  the  interests  o"  society  impose  upon  them, 
however  subtle  the  distinctions  may  be  with  which 
they  have  to  deal.  It  is  the  boast  of  the  law,  through 
which  it  claims  rank  among  the  sciences,  that  it  is 
able  to  regulate  the  rights  of  men  by  principles  ; 
and  this  ought  to  be  no  less  true  of  it,  when  it  deals 
with  subjects  of  a  metaphysical  character,  than 
when  it  adjudicates  controversies  of  the  most  sim- 
ple nature. 

The  examination  hcr^'ofore  made  in'o  the  nature 
of  this  property,  has  shown,  that  while  the  public 
enjoys  the  right  of  reading  the  intellectual  contents 
of  a  book,  to  the  author  belongs  the  exclusive  right 


238  LAW    OF    COPYRIGHT. 

to  take  all  the  profits  of  publication  which  the  book 
can,  in  any  form,  produce.  His  exclusive  right  in- 
cludes the  whole  book  and  every  part  of  it.  Hence 
it  follows,  that  this  right  may  be  invaded  in  several 
ways  ;  1.  By  reprinting  the  whole  work,  verbatim; 
2.  By  reprinting,  verbatim,  a  part  of  it,  either  with 
or  without  acknowledgment  of  the  source  from  which 
the  extract  or  passage  is  taken  ;  3.  By  imitating  the 
whole  or  a  part,  or  by  reproducing  the  whole  or  a 
part  with  colorable  alterations  and  disguises,  intend- 
ed to  give  to  it  the  character  of  a  new  work  ;  4.  By 
reproducing  the  whole  or  a  part  under  an  abridged 
form. 

With  regard  to  each  of  these  forms  of  infringement, 
it  is  to  be  observed,  that  the  question  of  intention 
does  not  enter  directly  into  the  determination  of  the 
question  of  piracy.  The  exclusive  privilege,  which 
the  law  secures  to  authors,  may  be  equally  violated, 
whether  the  work  complained  of  was  written  with  or 
without  the  an'mus  furundi — the  intention  to  take 
what  belongs  to  another,  and  thereby  to  do  an  in- 
jury. A  party  may  mistake  his  own  rights,  or  the 
rights  of  the  author  whose  book  he  makes  use  of  in 
the  compilation  of  his  own.  The  fact  of  his  having 
made  such  a  mistake,  or  thj  degree  of  good  faith 
with  which  h?  has  acted,  cannot  settle  a  question 
which  depends  upon  other  elements.' 

To  decide  the  question  of  piracy  upon  the  motives 

>  Emerson  v.  Davies,  3  Story's  R.  768.    Folsom  v.  Marsh,  2  Story's  R.  100. 


INFRINGEMENT    OF    COrYRIGIIT.  239 

of  the  party  charged  with  the  infringement,  would 
reduce  the  exclusive  right  secured  to  authors  by  the 
law  to  a  much  lower  scale  of  value  and  efficiency 
than  the  law  intends  to  give  to  it.  The  most  direct 
and  palpable  piracies  would  escape  correction,  where 
the  party  charged  could  make  it  appear  that  he  had 
acted  innocently.  The  privilege  of  authors  would 
be  rendered  of  no  value  whatever,  where  the  exist- 
ence of  the  right  admitted  of  a  reasonable  doubt  be- 
fore adjudication  ;  since  the  defendant  would  only 
have  to  show  that  such  a  doubt  existed,  and  then  to 
claim  the  benefit  of  that  doubt  in  establishing  his 
innocent  intention. 

It  is  necessary,  therefore,  in  every  inquiry  whether 
a  piracy  has  been  committed,  to  look  at  the  complex 
character  of  the  question.  It  involves,  first,  an  in- 
quiry into  the  existence  of  the  exclusive  right  claim- 
ed by  the  author  whose  book  is  supposed  to  have 
been  infringed  ;  and,  secondly,  the  determination  of 
the  question  whether  this  right  has  been  infringed  by 
what  has  been  done  by  the  party  charged  with  an 
infrinojement. 

The  elements  by  which  the  first  of  these  questions 
is  to  be  determined,  have  been  already  pointed  out. 
The  second  question  forms  the  appropriate  subject 
of  discussion  in  the  present  chapter.  Before  consid- 
ering particular  forms  and  cases  of  pirijcy,  the  gene- 
ral doctrines,  on  which  the  ,  olution  of  this  quc^tion 
depends,  may  be  here  cursorily  examined. 

The  statutes  which  secure  the  exclusive  rights  of 


240  LAW    OF    COPYRIGHT. 

authors,  do  not  define,  in  any  terms,  what  shall 
constitute  an  infringement  of  copyright.  It  is  left  to 
the  tribunals  to  decide,  in  each  case,  upon  the  cir- 
cumstances of  the  case,  whether  a  violation  of  the 
right  has  been  committed.  On  the  one  hand,  the 
courts  must  regard  the  existence  of  the  exclusive 
right,  when  established  or  admitted  ;  and  on  the 
other,  the  principle  of  public  policy,  which  admits  of 
some  use  of  all  antecedent  literature.  This  last 
consideration,  however,  will  not  sanction  direct  and 
palpable  injuries  to  the  author,  in  whom  the  law  has 
vested  the  sole  right  to  take  the  profits  of  his  own 
book  and  of  every  part  of  it.  It  becomes,  therefore, 
a  most  material  inquiry,  in  all  cases,  to  ascertain 
whether  the  author  has  sustained  or  is  likely  to  sus- 
tain any  injury  by  the  publication  of  which  he  com- 
plains ;  and  perhaps  it  will  be  found  that  this  is  the 
test  by  which  the  question  of  infringement  ought  to 
be  determined,  in  nearly  all  doubtful  and  difficult 
cases. 

I  am  not  aware  of  any  recorded  decision,  or  of  any 
principle  of  law,  which  would  deny  redress  to  an  au- 
thor who  should  prove  a  direct  injury,  upon  the 
ground  that  the  writer  who  had  caused  it  had  made 
a  justifiable  use  of  his  work.  It  is  easy  to  imagine 
cases,  where  the  use  which  a  subsequent  writer 
makes  of  a  previous  publication  is  apparently  within 
the  limits  of  the  general  right  of  selection,  or  cita- 
tion, or  tacit  adoption  ;  but  if  an  injury  can  be  prov- 
ed to  be   the  effect,  I  know  of  no  rule  of  law,  by 


PIRACY    BY    TAKING    THE    WHOLE    WORK.        241 

which,  consistently  with  the  strict  right  of  the  pre- 
vious author,  such  use  can  be  pronounced  to  be  ad- 
missible. The  (juestion,  whether  very  trifling  inju- 
ries will  be  redressed  by  one  class  of  the  public 
tribunals,  is  entirely  aside  from  the  strict  right  to 
redress  from  some  tribunal,  which  depends  upon  no 
considerations  of  judicial  convenience,  or  limits  of 
jurisdiction.  Notwithstanding  some  dicta  in  a  few 
cases,  and  the  general  principle,  (which  cannot 
be  established  at  a  fixed  line,)  by  which  what  is 
called  the  fair  use  of  a  previous  publication  is  ob- 
scurely hinted  at,  I  apprehend  that  the  doctrine  of 
our  law  is  and  must  be,  that  where  an  injury  is 
caused,  an  infringement  is,  in  point  of  strict  right, 
made  out. 

1.  Piracy,  by  reprinting  the  whole  work  verbatim. 

In  cases  of  this  kind,  there  can  ordinarily  be  no 
question  to  be  determined,  except  the  existence  of 
the  copyright.  The  object  with  which  the  original 
work  is  thus  taken,  and  the  form  in  which  it  is  used, 
are  immaterial.  It  is  equally  a  violation,  whether 
the  whole  of  a  smaller  work  is  inserted  in  a  larsier 
one,  or  whether  it  is  reprinted  by  itself,  with  notes 
or  additions,  if  the  reprint  works  an  injury  to  the 
proprietor.' 


'  There  are  some  very  doubtful  Erskine  put  this  case:  "Suppose 

diitn  of  Lord  Ellonborouffh,  on  this  a  man  tnok  Palcy's  rhilosophy,  and 

subject.     In   ilie    case   of   Cary  v.  copied  a  wliole  essay,  vviih  obscrva- 

Kearsly,  4  Esp.  N.  P.  C.  1G8,  170.  tionsand  notes,  or  additions  at  the 

ai 


242 


LAW    OF    COPYRIGHT. 


2.     Piracy  by  reprinting  any  part  of  a  work,  verbatim. 

This  class  of  cases  involves  the  inquiry  —  What 
use  can  lawfully  be  made  of  a  previous  publication, 
protected  by  copyright,  in  the  way  of  quotation  ? 


end  of  it,  would  that  be  piracy?" 
His  lordship  is  reported  to  have  an- 
swered, "That  would  depend  on 
the  facts  of  whether  the  publication 
of  that  essay  was  to  convey  to  the 
public  the  notes  and  observations 
fairly,  or  only  to  color  the  publica- 
tion of  the  original  essay,  and  make 
that  a  pretext  for  pirating  it ;  if  the 
latter,  it  could  not  be  sustained. 
That  part  of  the  work  of  one  author 
is  found  in  another,  is  not  of  itself 
piracy,  or  sufficient  to  support  an 
action  ;  a  man  may  fairly  adopt  the 
work  of  another  ;  he  may  so  make 
use  of  another's  labors  for  the  pro- 
motion of  science  and  the  benefit  of 
the  public  ;  but  having  done  so,  the 
question  will  be,  '  Was  the  matter 
so  taken  used  fairly  with  that  view, 
and  without  what  I  may  term  the 
animus  furandi  1  "  —  The  motives  of 
public  benefit  and  advancement  of 
the  interests  of  science  arc  danger- 
ous grounds  on  which  to  allow  the 
taking  of  another's  property  ;  al- 
though these  great  objects  are  to  be 
so  far  kept  in  view,  as  to  justify  a 
fair  use  of  previous  publications,  that 
is,  a  use  which  does  no  injury.  But 
whether  any  use,  which  works  a 
direct  injury,  can  be  justified,  is  the 
crux  argumenti.  We  may  suppose 
a  perfectly  honest  and  praiseworthy 
intention  to  refute  a  book,  believed 
to  be  erroneous,  by  means  of  com- 
mentary ;  and  for  this  purpose  the 
whole  text  of  the  work  is  republish- 
ed. What  tendency  has  the  inten- 
tion of  the  commentator  to  prove 
that  the  original  author's  copyright 
has  not  been  infringed?    That  ques- 


tion has  but  two  elements  :  first, 
whether  the  work  is  under  the  pro- 
tection of  copyright  ;  second,  whe- 
ther anything  has  been  done  to 
render  the  exclusive  privilege  less 
valuable  to  the  proprietor.  If  both 
these  questions  arc  answered  affirm- 
atively, the  object  or  purpose  with 
which  the  injury  was  done  cannot 
palliate  the  responsibility. 

There  is  a  similar  dictum  of  Lord 
Erskine's,  in  Matthewson  v.  Stock- 
dale,  12  Ves.  275,  where  he  said, 
"  I  admit  no  man  can  monopolize 
such  subjects  as  the  English  Chan- 
nel, the  Island  of  St.  Domingo, 
[charts]  or  the  events  of  the  world  ; 
and  every  man  may  take  what  is 
useful  from  the  original  work  ;  im- 
prove, add,  and  give  to  the  public  the 
whole,  comprising  the  original  work, 
with  the  additions  and  improve- 
ments ;  and  in  such  a  case  there  is 
no  invasion  of  any  right."  This  is 
extravagant ;  but  it  has  been  equal- 
led by  a  dictum  of  Sir  L.  Shadwell, 
V.  C.  in  a  recent  case,  where,  how- 
ever, the  point  was  not  involved. 
"  Any  person  may  copy  and  publish 
the  whole  of  a  literary  composition, 
provided  he  ivrites  notes  upon  it,  so 
as  to  present  it  to  the  public,  connect- 
ed with  matter  of  his  own.'''  Martin 
V.  Wright,  6  Simons,  298.  Mr. 
Justice  Story  has  laid  down  the  doc- 
trine, that  if  the  work  of  the  defend- 
ant substantially  includes  the  essen- 
tial parts  of  the  plaintiff's,  so  as  to 
supersede  it.  it  is  a  violation  of  the 
plaintiff's  copyright,  although  the 
plan  and  objects  of  the  defendant's 
book  may  be  different  from  those  of 


INFRINGEMENT  BY  QUOTATION.       243 

By  quotation,  as  here  used,  I  mean  the  transfer  of 
sentences,  or  passages, .  or  paragraphs,  rUcralim, 
whether  with  or  without  acknowledgment  of  the 
source  from  which  they  are  taken. 

The  first  circumstance  to  which  we  have  to  attend, 
in  this  inquiry,  is,  whether  the  use  of  matter  by  quo- 
tation, in  a  given  case,  tends  to,  or  does,  in  fact, 
injure  the  sale  of  the  book  from  which  the  extract  is 
taken.  The  original  author  of  the  extract  has  the 
exclusive  right  to  publish  and  sell  it  ;  and  it  is 
therefore  a  very  material  inquiry,  to  ascertain  how 
far  he  is  injured,  or  is  likely  to  be  injured,  b^'  its 
publication  by  another  person. 

'It  will  be  apparent,  on  reflection,  that  the  quantity 
of  matter  taken  cannot  be  decisive  of  this  question. 
The  most  material  and  valuable  part  of  a  book,  or 
other  publication,  may  be  embraced  in  a  few  para- 
graphs or  even  sentences,  which  contain  all  that  is 
in  fact  original  with  the  author.  If  a  person,  who 
had  made  a  discovery  in  science,  should  choose  to 
enunciate  it  in  a  work,  of  which,  by  securing  the 
copyright,  he  intended  to  reap  the  profits,  and 
should  introduce  the  statement  of  his  discovery  into 
a  general  treatise  on  the  branch  of  science  to  which 
it  belonged,  the  matter  of  his  treatise  at  large  might 
be  far  from  being  original,  while  the  portion  of  the 

the  plaintiff's.    Emerson  v.  Davies,  by  inserting  a  smaller  in  a  larger 

3  Story's  R.    768,    797.     Sec   also  work,  or  with  the  addition  of  notes 

Mawman  v.  Tegg,  2   Russ.    365  ;  or  commentaries,  is  there  treated  as 

Campbell  v.  Scott,  11  Simons,  31.  a   piracy,     l^cnovinrd,    toni.  ii.   pp. 

In  France,  the  same  principles  are  15,  16,   19,  20.     Merlin,  Questions 

applied.     Any  republication,  either  de  Droit,  tit.  Conlrefagon,  ^  iv. 


244  laav  of  copyright. 

work,  containing  the  description  of  liis  discovery, 
would  be  purely  and  eminently  novel.  The  repub- 
lication of  this  part  of  the  book  would  be  a  taking  of 
that  which  constituted  its  chief  value,  and  yet  the 
proportion  which  it  bore  to  the  rest  of  the  work 
might,  in  respect  to  quantity,  be  very  inconsid- 
erable. 

Quantity,  therefore,  is  of  itself  no  test,  by  which 
to  determine  whether  a  quotation  amounts  to  a 
piracy  ;  and  it  has  accordingly  been  disregarded  in 
some  cases.  Thus,  where  it  was  suggested  by  coun- 
sel„that  the  quantity  taken  by  the  defendant  from 
the  plaintiff's  book  would  be  an  unfair  quantity,  even 
if  the  source  had  been  acknowledged.  Lord  Cot- 
tenham,  C.  said,  "  When  it  comes  to  a  question  of 
quantity,  it  must  be  very  vague.  One  writer  might 
take  all  the  vital  part  of  another's  book,  though  it 
might  be  a  small  proportion  of  the  book  in  quantity. 
It  is  not  only  quantity,  but  value  that  is  always 
looked  to."^ 

This  doctrine  is  not  to  be  considered  as  affected 
by  those  decisions,  in  which  courts  of  equity  have 
declined  to  interfere,  on  account  of  the  minuteness 
of  the  injury  occasioned  by  a  short  extract.  Appli- 
cations for  injunctions  have  been  refused,  where  the 
value  of  the  extract  and  the  amount  of  injury  have 
been  so  minute  and  trifling,  as  to  induce  the  court 
not  to  interfere,  and  so  to  restrain  the  practice  of 
occupying  its  time  by  applications  in  which  it  would 

'  Bramhall  v.  Halcombe,  3Mylne  &  Cr.  737,  738. 


INFRINGEMENT    BY    QUOTATION. 


245 


be  di/Ficult  to  take  an  account  of  the  alleged  injury.' 
But  even  in  such  cases,  the  infringement  might  be 
apparent,  and  the  remedy  at  the  hands  of  a  jury  re- 
mains."  There  is,  therefore,  no  material  qualifica- 
tion of  the  general  doctrine,  that  mere  quantity  does 
not  determine  the  question  of  infringement.  Be  the 
quantity  large  or  small,  if  the  extract  furnishes  a 
substitute  for  the  book  from  which  it  is  taken,  so  as 
to  work  an  appreciable  injury,  it  is  so  far  an  action- 
able violation  of  the  copyright. 

The  license  of  what  is  called  fair  quotation  cannot, 
I  apprehend,  be  said  to  furnish  any  different  stand- 
ard of  determination,  in  cases  of  quotations  or  ex- 
tracts. This  license  it  is  very  difficult  to  define.^ 
On  the  one  hand,  there  is   a  class  of  publications, 


'  Bell  V.  Whitehead,  17  Law 
Journ.  142.  Whittingham  v.  Wool- 
er,  2  Swanst.  428.  Tonson  v.  Walk- 
er, 3  Swanst.  672. 

^  Ibid. 

'  In  Wilkins  v.  Aikin,  17  Yes. 
422,  421,  Lord  Eldon  said,  "There 
is  no  doubt  that  a  man  cannot,  un- 
der the  pretence  of  quotation,  pub- 
lish the  whole  or  a  part  of  another's 
book,  though  he  may  use,  what  in 
all  cases  it  is  very  diiricull  to  define, 
fair  quotation."  This  case  suggests 
the  qu(crc,  whether  the  copying  of  a 
map,  as  an  illustration,  in  a  fair  his- 
tory of  all  the  maps  of  a  county, 
would  be  restrained.  Lord  Eldon 
said,  "  Suppose  a  publication,  pro- 
fessing to  be  an  account  of  the  im- 
provement of  maps  of  tiie  county  of 
Middlesex  ;  compiling  the  history  of 
all  the  maps  of  it  ever  published  ; 
pointing  out  the  peculiarities  be- 
longing to  them,  and  giving  copies 
of  them  all  ;  as  well  those  tiie  copy- 

21* 


right  of  which  have  expired,  as  those 
of  which  it  was  subsisting  ;  it  is  not 
easy  to  say  with  certainty  what 
would  be  the  decision  upon  such  a 
case.  If  it  was  a  fair  history  of  the 
maps  of  the  county,  which  had  been 
published,  and  the  publication  of  the 
individual  work  was  merely  an  illus- 
tration of  tliat  history,  that  is  one 
way  of  stating  it ;  but  if  a  jury  could 
peraive  the  object  to  muhc  a  projit  by 
publishing  the  map  of  another  man, 
that  would  require  a  different  con- 
sideration" Perhaps  this  is  only  an- 
other form  of  stating  that  the  ques- 
tion would  be,  wheiher  the  owner 
of  the  map  is  injured  by  the  use 
made  of  it.  But  if  his  lordship 
intended  to  say,  that  the  question 
would  depend  on  the  intention  of  the 
party  to  do  an  injury,  it  seems  to  mc 
that  other  authorities  do  not  uphold 
his  doctrine,  and  that  it  is  not  con- 
sistent with  principle. 


246 


LAW    OF    COPYRIGHT. 


the  object  of  which  is  to  give  extracts  from  other 
works,  for  the  purposes  of  criticism  ;  and  the  notion, 
that  the  insertion  of  such  extracts  tends  to  increase 
the  sale  of  the  works  from  which  they  are  taken,  if 
fairly  made,  has  been  judicially  recognized,  and  is 
admitted  to  be  practically  true.^  Any  amount  of  ex- 
tracts, which  the  purpose  of  illustrating  fair  criticism 
requires,  may  be  made  in  such  works,  with  this  limi- 
tation, that  the  review  or  critical  notice  shall  not 
furnish  a  substitute  for  the  book  ;  or,  in  other  terms, 
shall  not  communicate  the  same  knowledge  with  the 
original  work.  This  was  the  distinction  adopted  by 
Lord  Ellenborough,  when  he  had  occasion  to  use  an 
illustration  drawn  from  the  practice  of  reviewing.^ 


'  Bell  V.  Whitehead,  17  Law 
Journ.  142. 

*  Roworth  V.  Wilkes,  1  Campb. 
94,  98.  In  this  case  the  quantity 
taken  from  the  plaintiff's  book  and 
inserted  in  an  encyclopedia,  amount- 
ed to  seventy-five  pages  out  of  one 
hundred  and  eighteen.  Lord  Ellen- 
borough  said,  in  instructing  the  jury, 
"  The  question  is,  whether  the  de- 
fendant's publication  would  serve 
as  a  substitute  for  the  plaintiff's? 
A  review  will  not  in  general  serve 
as  a  substitute  for  the  book  review- 
ed ;  and  even  there,  if  so  much  is 
extracted  that  it  communicates  the 
same  knowledge  with  the  original 
work,  it  is  an  actionable  violation  of 
literary  property.  The  intention  to 
pirate  is  not  necessary  in  an  action 
of  this  sort ;  it  is  enough  that  the 
publication  complained  of  is  in  sub- 
stance a  copy,  whereby  a  work  vest- 
ed in  another  is  prejudiced."  By 
substitute  is  not  to  be  understood  a 
substitute  for  the  whole  book,  but  a 


substitute  quoad  hoc.  See  the  re- 
marks of  Sir  L.  Shadwell,  V.  C.  in 
Sweet  V.  Shaw,  Jurist,  vol.  i.  p. 
212.  See  also  Macklin  v.  Hichard- 
son,  Ambl.  694.  Whittingham  v. 
Wooler,  2  Swanst.  428.  The  case 
of  Dodsley  v.  Kinnersley,  Ambl.  403, 
which  seems  to  look  the  same  way, 
is  a  very  defective  report,  and  the 
decision,  as  stated,  seems  to  me 
quite  wrong,  upon  this  point.  The 
defendant  printed,  in  a  magazine, 
part  of  the  narrative  of  Dr.  John- 
son's Rasselas,  leaving  out  the  re- 
flections. Upon  filing  the  bill,  the 
Lord  Keeper  Henley  refused  an 
injunction,  "doubting  whether  it 
was  such  a  book  as  the  stat.  2  Anne 
intended  to  protect'  "  The  ground 
of  this  learned  doubt  is  not  stated. 
When  the  cause  came  on  to  be 
heard  before  Sir  Thomas  Clarke, 
M.  U.,  two  booksellers  deposed 
that  the  sale  of  the  book  was 
prejudiced  by  its  being  printed  in 
the  magazine.     This  was  answered 


INFRINGEMENT    BY    QUOTATION.  247 

On  the  other  hand,  instances  occur,  in  whicli  ex- 
tracts from  other  books  are  used  with  or  without  ac- 
knowledgment, not  for  purposes  of  criticism  ;  and 
other  instances,  in  books  which  are  not  established 
journals  of  criticism,  but  in  which  criticism  is  made 
the  ostensible  purpose  for  which  extracts  are  made. 

With  regard  to  the  first  of  these  classes,  the  ac- 
knowledgment or  concealment  of  the  fact  of  quota- 
tion can  have  no  other  bearing  than  to  determine 
whether  it  was  or  was  not  made  with  a  fraudulent 
intention.  The  presence  or  the  absence  of  such 
intention  will  not  conclusively  determine  whether 
an  injury  has  been  done.  The  legitimate  influence 
of  the  proof  of  intention  is  merely  to  assist  the  court, 
among  other  circumstances,  in  determining  whether 
the  party  has  transcended  the  limits  of  fair  quota- 
tion. But  if  he  has,  with  the  fairest  intentions, 
published  extracts  of  such  a  character  as  to  injure 
the  work  from  which  they  are  taken,  his  intentions 
are  w^holly  immaterial  to  the  issue. 

One  of  the  most  marked  cases  of  this  class  occur- 
red in  relation  to  the  writings  of  Washington.  The 
plaintiffs  were  the  proprietors  of  a  large  work,  con- 
taining the  letters  and  other  writings  of  Washing- 
ton, w^ith  a  life.    The  defendants  published  a  smaller 


by  evidence  of  a  usage  of  printing  ex-  An  injunction  was  thereupon  re- 
tracts of  new  books  in  magazines,  fused;  but  ihat  it  would  be  granted 
witliout  asking  leave  of  tlie  authors,  at  the  present  day,  under  the  like 
and  that  the  plainlifls  had  tlicm-  circumstances,  there  can  be  liille 
eelves  printed  extracts  in  the  An-  doubt, 
nual  Register  and  in  a  newspaper. 


248 


LAW    OF    COPYRIGHT. 


work,  containing  a  new  and  original  life  ;  but  with 
copious  extracts  from  the  letters  and  papers  contain- 
ed in  the  plaintiffs'  work.  Mr.  Justice  Story  granted 
an  injunction  as  to  these  extracts,  admitting  at  the 
same  time,  that  the  defendants  might  have  acted  un- 
der a  mistake  as  to  the  plaintiffs'  rights.^ 


*  Folsomw.  Marsh,  2  Story's  R. 
100,  115.  In  this  case  the  learned 
judge  said.  "  The  question,  then,  is, 
whethnr  this  is  a  jusiifiable  use  of 
the  original  materials,  such  as  the 
law  recognizes  as  no  infringement 
of  the  copyright  of  the  plaintiffs.  It 
is  said,  that  the  defendant  has  se- 
lected only  such  materials  as  suited 
his  own  limited  purpose  as  a  biog- 
rapher. That  is,  doubtless,  true ; 
ami  he  has  produced  an  exceedingly 
valuable  book.  But  that  is  no  an- 
swer to  the  difficulty.  It  is  certain- 
ly not  necessary,  to  constitute  an 
invasion  of  copyri>iht,  that  the  whole 
of  a  work  should  be  copied,  or  even 
a  large  portion  of  it.  in  form  or  in 
sub-tance.  If  so  much  is  taken, 
that  the  value  of  the  original  is  sen- 
sibly diminished,  or  the  labors  of 
the  original  author  are  substaniially 
to  an  injurious  extent  appropriated 
by  anotber,  that  is  sufficient,  in  point 
of  law,  to  constituie  a  piracy  ipro 
tanin  The  entirety  of  the  copy- 
right is  the  property  of  the  author  ; 
and  it  is  no  defence,  that  another 
person  has  appropriati'd  a  part,  and 
not  the  whole,  of  any  pntperty. 
Neither  does  it  necessarily  depend 
upon  the  riuamity  t:iken,  whether  it 
is  an  infrin^iement  of  the  copyright, 
or  not  It  is  often  affiicted  by  other 
con.sideralions,  the  value  of  the  ma- 
terials taken,  and  the  importance  of 
it  to  the  sale  of  the  orignial  work. 
Lord  Cottenham,  in  the  recent  cases 
of  Bramliall  v.  Ilalcombc,  (oMylne 
&  Craig,  737,  "38, )  and  Saunders 


V.  Smith,  (3  Mylne  &  Craig,  711, 
73G,  737,)  adverting  to  this  point, 
said  :  '  When  it  comes  to  a  ques- 
tion of  quantity,  it  must  be  very 
vague.  One  writer  might  take  all 
the  vital  part  of  another's  book, 
though  it  might  be  but  a  small  pro- 
portion of  the  book  in  quantity.  It 
is  not  only  quantity,  but  value,  that 
is  always  looked  to.  It  is  useless 
to  refer  to  any  particular  cases,  as 
to  quantity.'  In  short,  we  must 
often,  in  deciding  questions  of  this 
sort,  look  to  the  nature  and  objects 
of  the  selections  made,  the  quantity 
and  value  of  the  materials  used,  and 
the  degree  in  -which  the  use  may 
prejudice  the  sale,  or  diminish  the 
profits,  or  supersede  the  objects  of 
the  original  work.  Many  mixed 
ingredients  enter  into  the  discussion 
of  such  questions.  In  some  cases,  a 
considerable  portion  of  the  materials 
of  the  original  work  may  be  fused, 
if  1  may  use  such  an  expression, 
into  another  work,  so  as  to  be  un- 
distinguishable  in  the  mass  of  the 
latter,  which  has  other  professed 
and  obvious  objects,  and  cannot  fair- 
ly be  treated  as  a  piracy  ;  or  they 
may  be  inserted  as  a  sort  of  distinct 
and  mosaic  work,  into  the  general 
texture  of  the  second  work,  and 
constitute  the  peculiar  excellence 
thereof,  and  then  it  may  be  a  clear 
piracy.  If  a  person  should,  under 
color  of  publishing  '  Elegant  Ex- 
tracts '  of  poetry,  include  all  the 
best  pieces  at  large  of  a  favorite 
poet,  whose  volume  was  secured  by 


INFRINGEMENT    BY    QUOTATION. 


249 


In  the  case  of  Lewis  v.  Fullerton,  an  attempt  was 
made  to  justify  the  taking  of  portio  i.>  of  he  plain- 
tiff's work,  under  a  fair  use  of  a  former  publication  ; 
but  an  injunction  was  granted,  the  court  being  satis- 
fied that  the  defendant,  in  the  compilation  of  his 
book,  had  habitually  made  use  of  all  that  suited  his 
purpose  in  the  plaintiff's  work  ' 


a  copyright,  it  would  be  difficult  to 
say,  why  it  was  not  an  invasion  of 
that  right,  since  it  migiit  constitute 
the  entire  value  of  the  volume. 

"In  the  present  case,  I  have  no 
doubt  whatever,  that  there  is  an 
invasion  of  the  plainlilTs'  copyritjht ; 
I  do  not  say  designedly,  or  from 
bad  intentions ;  on  the  contrary,  I 
entertain  no  doubt,  that  it  was  deem- 
ed a  perfectly  lawful  and  jnstifiable 
use  of  the  plaintills"  wurk.  But  if 
the  defendants  may  take  three  hun- 
dred and  nineteen  letters,  included 
in  the  plaintiffs'  copyright,  and  ex- 
clusively belonging  to  them,  there 
is  no  reason  why  anotlier  bookseller 
may  not  take  other  five  hundred  let- 
ters, and  a  thiid,  one  thousand  let- 
ters, and  so  on,  and  thereby  the 
plaintitTs  copyright  be  totally  de- 
stroyed. Besides  ;  every  one  must 
see,  that  the  work  of  the  defendants 
is  mainly  founded  upon  tlicse  letters, 
constituting  more  than  one  third  of 
their  work,  and  imparting  to  it  its 
greatest,  nay,  its  essential  value. 
Witliout  those  letters,  in  its  present 
form,  the  work  must  fall  to  the 
ground.  It  is  not  a  case,  where  ab- 
breviated or"  select  passages  are 
taken  from  particular  letters;  but 
the  entire  letters  are  taken,  and 
those  of  most  interest  and  value  to 
the  public,  as  illustrating  the  life, 
the  acts,  and  the  character  of  Wash- 
ington. It  seems  to  me,  therefore, 
that  it  is  a  clear  invasion  of  the  rijjht 


of  property  of  the  plaintiffs,  if  the 
copying  of  parts  of  a  work,  not  con- 
stituting a  major  part,  can  ever  be  a 
violation  thereof;  as  upon  principle 
and  authority,  I  have  no  doubt  it 
may  be.  If  it  had  been  the  case  of 
a  fair  and  l/ona  fide  abridgment  of 
the  work  of  the  plaintiffs,  it  might 
have  admitted  of  a  very  different 
consideration."  See  also  Mawman 
V.  Tegg,  2  Russ.  383.  Sweet  v. 
Shaw,  Am.  Jurist,  vol.  i.  p.  212. 

'  Lewis  r.  Fullerton,  2  Beavan's 
R.  6,  8.  In  this  case.  Lord  Lang- 
dale,  M.  R.  said,  "  Any  man  is  en- 
titled to  write  and  publish  a  topo- 
graphical dictionary,  and  to  avail 
himself  of  the  labors  of  all  former 
writers  whose  works  are  not  sub- 
ject to  copyright,  and  of  all  public 
sources  of  information  ;  but  whilst 
all  are  entitled  to  resort  to  common 
sources  of  information,  none  are  en- 
titled to  save  themselves  trouble 
and  expense  by  availing  themselves, 
for  their  own  profit,  of  other  men's 
works  still  subject  to  copyright  and 
entitled  to  protection  ;  and  the  ques- 
tion is,  whether  JMr.  Bell  did  or  did 
not,  for  the  compilation  of  the  work 
in  which  he  was  engaged,  avail  him- 
self of  the  plaintiff's  work  unlaw- 
fully, and  in  violation  of  the  plain- 
tiff's copyright.  For  the  purpose 
of  ascertaining  this,  I  have  read  a 
very  considerable  nuiuber  of  articles 
in  both  works  ;  the  trouble  of  com- 
paring them  has  been  greatly  dimin- 


250 


LAW  OF  COPYRIGHT. 


The  question  has  also  arisen,  whether  it  is  lawful 
to  publish  verbatim  cases  from  the  Law  Reports, 
upon  certain  subjects,  or  a  selection  of  such  cases, 
with  annotations.  Lord  Cottenham,  upon  the  book 
entitled  "Smith's  Leading  Cases,"  assuming,  but 
not  deciding,  the  legal  question  of  an  infringement, 
was  obliged  to  refuse  an  injunction,  upon  the  ground 
of  acquiescence  on  the  part  of  the  plaintiff.^     But  in 


ished  by  the  exhibits  which  have 
been  prepared  on  both  sides  ;  and 
the  result  of  the  examination  ap- 
pears to  me  to  show  that  Mr.  Bell,  in 
the  compilation  of  his  gazetteer,  has 
extensively,  and  as  far  as  my  exam- 
ination has  gone,  it  would  not  be  too 
much  to  say,  habitually,  made  use 
of  all  that  suited  his  purpose  in  the 
plaintiff's  work  ;  it  is  evident,  that 
in  a  large  proportion  of  the  defend- 
ant's work,  no  other  labor  has  been 
applied  than  in  copying  the  plain- 
tiff's work,  and  arranging  the  mat- 
ter in  the  form  which  best  suited 
the  purpose  of  the  compiler.  Mr. 
Bell  has  evidently  thought  himself 
under  no  restraint,  and  probably  did 
not  think  that  the  plaintiffs  were  en- 
titled to  any  copyright ;  and  if  that 
which  he  did  could  be  considered  as 
lawful,  it  is  plain  no  protection 
whatever  could  be  given  to  any 
work  in  the  nature  of  a  gazetteer, 
dictionary,  road-book,  calendar,  map 
or  any  other  work,  the  subject-mat- 
ter of  which  is  open  to  common  ob- 
servation and  inquiry  ;  and  that  ev- 
ery man  who  had  bestowed  any 
amount  of  labor  or  expense  in  col- 
lecting and  arranging  the  informa- 
tion requisite  for  the  production  of 
such  a  work,  might  immediately  on 
its  publication,  be  deprived  of  the 
fruit  of  his  industry  and  ability. 
Having  gone  carefully  through  all 
the  articles  commented  upon  in  the 


argument,  and  several  others,  I  am 
of  opinion  that  the  defendant's  work 
is,  to  a  very  considerable  extent,  a 
piracy  of  the  plaintiff" 's  copyright." 
'  Saunders  v.  Smith,  3  M.  &  Cr. 
711.  728.  In  regard  to  the  legal 
right,  his  lordship  said,  "  In'  this 
case,  I  find  the  publication  com- 
plained of  to  be  of  a  character 
which,  whether  it  be  or  be  not  an 
infringement  of  the  copyright  of  the 
plaintiffs,  is  a  course  of  proceeding 
which  has  been  pretty  largely  ad- 
mitted, and  pretty  generally  adopt- 
ed. Several  cases  occurred  to  me, 
and  several  were  mentioned  to  me 
at  the  bar,  in  which  a  gentleman 
at  the  bar,  desirous  of  publishing  a 
work  upon  a  particular  subject,  has 
collected  the  cases  upon  that  sub- 
ject, and  has  taken  those  cases,  gen- 
erally speaking,  verbatim,  from  re- 
ports which  are  covered  by  copy- 
right. No  instance  has  been  repre- 
sented to  me  in  which  those  entitled 
to  the  copyright  have  interfeied;  no 
judgment,  therefore,  has  been  pro- 
nounced upon  that  subject.  I  am  not 
stating  whether  the  owner  of  the 
copyright  is  entitled  to  interfere  in 
such  a  case,  or  whether  that  use  of 
published  reports  is  or  is  not  to  be 
permitted.  That  is  a  question  of 
legal  right,  upon  which  I  find,  at 
present,  no  reason  for  coming  to  an 
adjudication."  Mr.  Justice  Story, 
referring  to  this  case,  said,  "  Much 


PIRACY    BY    EXTRACTS.  251 

a  similar  case,  Sir  L.  Shadwell,  V.  C.  granted  an  in- 
junction upon  the  ground  of  injury  to  the  plainlilF, 
where  eleven  cases  only  had  been  copied  verbatim  ; 
but  a  considerable  number  of  what  were  called 
abridged  cases  were,  in  truth,  copies  of  the  plain- 
tiff's volumes,  with  slight  alterations.^ 

The  same  principle  is  to  be  applied  to  books, 
which,  under  the  ostensible  purpose  of  criticism  or 
illustration,  give  extracts  from  other  publications  ; 
although  it  is  to  be  admitted  that  fair  criticism  may 
be  illustrated  by  fair  quotation.  Thus,  where  the 
defendant  published  a  book,  giving  specimens  of 
Modern  English  Poetry,  with  criticisms  and  biogra- 
phical notices,  and  inserted  therein  entire  poems 
and  extracts  from  poems  written  by  Mr.  Campbell, 
which  were  under  the  protection  of  copyright,  an  in- 
junction was  granted  in  his  favor  against  the  publi- 
cation." In  this  case  the  animus  fur  andi  was  held  to 
be  implied  by  law,  from  the  taking.^ 

must  in  such  cases  depend  upon  the  that  the  reporter  had  copyright  in 

nature  of  the  work,   tlie  value  and  his  marginal  notes  and  in  the  argu- 

extent  of  the  copies,  and  the  degree  menis  of  counsel,  as  prepared  and 

in  which  the   original  authors  may  arranged  in  his  work.     See  Gray  t'. 

be  injured    thereby."      Folsom   v.  Russell,  1  Story's  R.  11,  21. 
Marsh,  2  Story's  R.  118.  *  Campbell  v.  Scott,   11   Simons, 

'  Sweet  r.  Shaw,  The  Jurist,  vol.  31. 
i.  p.    212  ;   S.  C.    17  Law  J.   210.         '  Ibid.     I  must  here  express  my 

This  subject  came  under  considcra-  dissent  from  the  doctrines  laid  down 

tion  in  the  case  of  Wheaton  v.  Pe-  by  Mr.    Godson  on    the   sul)joct  of 

ters,  8  Peters  S.  C.  R.  591,   in   re-  quotations.     In  his  work  on  Patents 

lation  to  the  Reports  of  Cases  in  the  and  Copyrights,  p.  477,  Mr.  Godson 

supreme  court  of  the  United  States;  says,    "In  judging  of  a  quotation, 

but  the  court  held  that  there  could  whether   it   is   fair   and   candid,  or 

be  no  copyright  in  the  opinions  of  whether  the  person  who  quotes  it  has 

the  judges  of  that  court,  which  arc  been  swvLycAhyxYm  nninnixfnrandi ; 

pviblished  under  an  act  of  congress,  the  quantity  taken,  and  the  manner 

But  it  was  not  doubted,  it  seems,  in   which  it  is  adopted,  of  course 


252  LAW  OF  COPYRIGHT. 

Upon  the  whole,  the  doctrine  of  the  law  with  re- 
gard to  quotations  may  be  thus  stated.  To  forbid  to 
subsequent  WTiters  the  citation  of  passages  from  the 
works  of  their  predecessors,  under  all  circumstances, 
would  be  a  great  obstacle  to  the  progress  of  science 
and  knowledge.  If  the  extract  is  acknowledged, 
the  acknowledgment  shows  that  the  party  did  not 
intend  to  pass  as  his  own  what  belongs  to  another, 
and  thus  a  presumption  arises  that  he  did  not  make 
use  of  the  passage  for  the  purpose  of  turning  it  to  his 
own  pecuniary  account.  Still,  there  must  be  a  limit 
even  to  the  citation  of  passages  which  are  accom- 
panied by  an  acknowledgment  of  the  source  from 
which  they  are  taken  ;  and  there  is  no  more  definite 
and  consistent  limit  than  the  point  where  an  injury 
may  be  perceived,  which  varies  of  course  in  each 


must  he   considered.     If  the  work  (beinj^  a  question  of  fact  for  the  jury) 

complained  of  is  in  substance  a  copy,  that  it  was  done  with  a  bad  intent, 

then  it  is  not  necessary  to  show  the  and   that   the  matter  which  accom- 

intention  to  pirate  ;  lor  the  greater  panies  it  has  been   rolorably  intro- 

pan  of  the  matter  of  the  book  hav-  duced."     It  is  certainly  necessary, 

ing  been  purloined,  the  interition  is  in  determining  whether  the  animus 

apparent,  and  other  proof  is  super-  furamli  exists,  to  look  at  the  quan- 

fluous.      A  piracy  has  undoubtedly  tity  taken  and  the  manner  in  which 

been  cominiited.  But  if  only  a  small  it  was  taken.     But  the  more  recent 

portion  of  the  work  be  quoted,  then  authorities,  as  well  as  sound  princi- 

it  beomes  necessary  to  prove  that  it  pie.  do  not   look  at  the    intention, 

was  done  flw/wo/w/Yvri'//;  with  the  in-  whether   the  quantity    be    large  or 

tentioit  ofdepriving  the  author  of  his  small.     If  an  injury  is  caused,  there 

justreward,  by  givinjr  liis  work  to  the  is  no  occasion  to  jirove  the  intention 

public  in  a  ciieaper  form.    And  then  directly,  or  to  establish  it  by  infer- 

the  mode  of  doing  it  becomes  a  sub-  ence    from    the   circumstances.      If 

ject  for  inquiry.     For  it  is  not  suffi-  part  of  one   author's  book  is  found 

cient   to   constitute   a   piracy,    that  in  that  of  another,  the  question  will 

partof  one  auihor's  book  is  found  in  be,  what  effect  is  it  to  have?  not 

that  of  another,  unless  it  be  nearly  whether  it  was  taken  with  a  bad  in- 

the  whole,  or  so  much  as  will  show  tent. 


PIRACY    BY    COLORABLE    ALTERATION.  253 

case,  and  is  not  by  our  law  supposed  to  be  capable 
of  a  distinct  announcement  by  a  positive  rule.' 

3.  Piracy  by  imitation,  or  by  reproducing  with  colorable 
alterations  and  disguises  assuming  the  appearance  of  a 
new  work. 

This  is,  by  far,  the  most  frequent  form  in  which 
the  copyright  of  authors  is  infringed.  Copying  is 
not  confined  to  literal  repetition,  but  includes  also 
the  various  modes  in  which  the  matter  of  any  pub- 
lication may  be  adopted,  imitated,  or  transferred, 
with  more  or  less  colorable  alterations  to  disguise 
the  piracy.  The  main  question  in  all  such  cases  is, 
whether  the  author  of  the  work,  alleged  to  be  a 
piracy,  has  resorted  to  the  original  sources,  alike 
open  to  him  and  to  all  writers,  or  whether  he  has 
adopted  and  used  the  matter  or  plan  of  the  work 
with  the  infringement  of  which  he  is  charged,  with- 
out resorting  to  the  other  sources  from  which  he  had 
a  right  to  borrow.  We  have  seen,  in  a  former  chap- 
ter, what  is  the  just  extent  of  an  author's  right  in 
his  own  work.     It  is  there  laid  down,  that  no  writer 


'  Til  some  countries,  however,  an  tion  of  isolated  passages  of  a  work 

arbitrary  limit  lias  been  fixed  by  le-  already  printed,  and  the  reproduc- 

gislation.    In  Russia,  quotalionsare  tion  of  isolated  articles,  poems,  &c. 

permitted,  provided  the  quantity  ta-  in  works  of  literary  history,  or  in 

ken  does  not  exceed  one-third  of  the  collections  for  the  use  of  schools." 

book   from  which   they   are  taken ;  Upon  this   text,  M.    Renouard  ob- 

and  provided  that  the  writer's  own  serves  that  we  may  conclude  from 

text  is  twice  as  large  as  the  passages  the  exceptions  introduced  into   the 

taken   by  him  from  anotiier  work,  law,   that   more  important  extracts 

Renouard,   torn.    1,   p.  207.      The  would  be  deemed  piraticaL  (Tom. 

Prussian  code  excepts  from  the  pc-  2,  p.  17-  18.) 
nallies  of  piracy  "  the  literal  cita- 
22 


254  LAW    OF    COPYRIGHT. 

can  acquire  an  exclusive  title  to  a  subject,  but  that 
the  results  and  products  of  his  own  intellectual  labor, 
however  common  the  subject,  and  however  numer- 
ous and  public  the  sources  from  which  he  has  taken 
his  materials,  exclusively  belong  to  him.  In  some 
cases,  these  results  and  products  will  appear  in  the 
new  forms  and  combinations  given  to  old  materials, 
and  in  other  cases  they  will  consist  merely  in  the 
collection  and  arrangement  of  information  open  to 
any  one  to  collect,  but  collected  perhaps  by  the  par- 
ticular writer  for  the  first  time.  In  all  cases,  the 
inquiry  must  start  with  assuming  the  general  prin- 
ciple, that  every  writer  is  at  liberty  to  treat  of  any 
subject  whatever,  whether  it  has  been  previously 
written  upon  by  others  or  not ;  and  then  it  resolves 
itself  into  the  question,  whether  he  has  made  any, 
and  if  any,  whether  he  has  made  a  lawful  use  of  the 
particular  work  which  he  is  alleged  to  have  infringed.^ 
Comparison  of  the  two  works  is,  of  course,  the  test 
to  which  the  question  should  be  brought.  Among 
the  proofs  of  piracy,  upon  which  the  courts  have  been 
much  in  the  habit  of  relying,  is  the  occurrence  of  the 
same  inaccuracies  in  the  two  books  ;  and  when  the 
question  is,  whether  the  defendant,  in  preparing  his 
book,  had  before  him  and  copied  or  imitated  the  book 

>  Longman  v.  Winchester,  16  Moore,  1  East,  361,  362.  Trusler 
Ves.  269.  Mathewson  v.  Stock-  v.  Murray,  162,  n.  Gary  v.  Long- 
dale,  12  Ves.  270.  Gary  v.  Faden,  man,  1  East,  .360,  Wilkins  v.  Aikin, 
5  Ves.  24.  Tonson  V.  Walker,  b  16  Ves.  422.  IToggu.  Kirby,  8  Ves. 
Swanst.  672.  Garnan  v.  Bowles,  2  21.5.  Gary  v.  Kearsley,  4  Esp.  169. 
Bro.Gh.R.  80.  Mawraan  i;.  Tcgg,  170.  Gray?;.  Russell,  1  Story,  11. 
2  Russ.  385,  393.  Roworth  v.  Emerson  v.  Davies,  3  Story,  7"68. 
Wilkes,  1   Campb.   94.     Sayre  v. 


PROOF    OF    PIRACY.  255 

of  the  plaiiitifT,  it  is  manifest  that  this  kind  of  evi- 
dence is  the  strongest  proof,  short  of  direct  evidence, 
of  which  the  fact  is  capable.  Thus,  where  the  ques- 
tion was,  whether,  in  a  vast  proportion  of  the  work 
of  the  defendants,  any  other  labor  had  been  applied 
than  copying  the  plaintiffs'  work.  Lord  Eldon  said, 
that  from  the  identity  of  the  inaccuracies,  it  was  im- 
possible to  deny  that  the  one  was  copied  from  the 
other  verbatim  ct  literatim,}  So  too,  where  the  ques- 
tion was,  how  much  of  the  plaintiff's  book  had  been 
copied  by  the  defendant,  his  lordship  carried  the 
force  of  the  evidence  from  identity  of  inaccuracies  so 
far,  as  to  lay  down  the  principle,  that  when  a  con- 
siderable number  of  passages  are  proved  to  have 
been  copied  by  the  copying  of  the  blunders  in  them, 
other  passages,  which  are  the  same  with  passages  in 
the  original  book,  must  be  presumed,  prima  facic^  to 
be  likewise  copied,  though  no  blunders  occur  in 
them.^  But  this  kind  of  proof  is  often  wanting  ;  and 
where  it  is  not  found,  it  is  necessary  to  determine 
by  other  results  of  the  comparison,  whether  an  un- 
lawful use  has  been  made  of  the  plaintiffs'  book.  In 
many  cases,  the  occurrence  of  passages  identically 
the  same,  or  but  slightly  varied,  but  not  having  the 
ear-mark  of  inaccuracies,  has  been  held  conclusive 
proof  of  piracy,  even  in  that  class  of  works  in  which, 
from  the  nature  of  the  subject,  there  must  be  strong 


'  Longman  f.  Winchester,  16  Ves.     393.     See  also  Gary  v.  Kearsly,  4 
269.  Esp.  169,  170. 

»  Ma\vmanr.Tegg,2  Russ.  385, 


256  LAW    OF    COPYRIGHT. 

resemblances  between  any  two  books  in  which  it  is 
treated,  such  as  dictionaries,  encyclopedias,  calen- 
dars, road-books,  and  the  like.^  But  where  the  re- 
semblance does  not  amount  to  identity  of  parallel 
passages,  the  question  becomes,  in  substance,  this  — 
whether  there  be  such  similitude  and  conformity  be- 
tween the  two  books,  that  the  person  who  wrote  the 
one  must  have  used  the  other,  as  a  model,  and  must 
have  copied  or  imitated  it  ?  ~  In  these  cases,  the 
piracy  is  to  be  detected,  through  what  have  been 
called  colorable  alteration  and  servile  imitation. 
The  doctrines  which  have  been  laid  down,  with  re- 
ference to  this  class  of  cases,  require  here  a  careful 
examination. 

What  degree  of  resemblance  will  authorize  the 
inference  that  one  book  is  a  copy  of  another,  not- 
withstanding the  diversities  that  may  be  found  in 
them,  is  a  question  of  great  nicety,  which  must  de- 
pend on  the  circumstances  of  each  case.  In  a  case 
where  the  defendant  had  compiled  into  one  large 
map  four  charts  belonging  to  the  plaintiff,  and  the 

'  Mathewsonr.  Stockdale,  ISVes.  ist  of  the  main  design.  But  if  the 
270.  Carnan  v.  Bowles,  2  Bro.  similitude  can  be  supposed  to  have 
Ch.  R.  80.  Cary  v.  Longman,  1  arisen  from  accident,  or  necessarily 
East,  360.  Mawman  v.  Tegg,  2  from  the  nature  of  the  subject,  or 
Ross.  385,  393.  Gray  v.  Russell,  1  from  the  artist  having  sketched  de- 
Story,  11.  signs  merely  from  reading  the  let- 

"  In  a  case  concerning  prints,  Lord  ter-press  of  the  plaintiff's  work,  the 

Ellenborough  said  to  the  jury,  "It  defendant  is  not  answerable.     It  is 

is  still   to   be   considered,   whether  remarkable,  however,   that   he  has 

there  be  such  a  similitude   and  con-  given   no   evidence   to   explain  the 

formity  between  the  prints,  that  the  similitude,  or  to  repel  the  presump- 

person  who  executed   the  one   set  tion  which  tiiat  necessarily  causes." 

must  have    used  the   others    as    a  Roworth  v.  Wilkes,  1  Campb.  94. 
model.     In  that  case,  he  is  a  copy- 


PROOF    OF    PIRACY.  257 

fact  of  his  having  so  done  was  to  be  ascertained, 
Lord  Mansfield  said,  "  The  act  that  secures  copy- 
right to  authors,  guards  against  the  piracy  of  the 
words  and  sentiments ;  but  it  does  not  prohibit 
writing  on  the  same  subject.  As  in  the  case  of  his- 
tories and  dictionaries  :  In  the  first,  a  man  may 
give  a  relation  of  the  same  facts,  and  in  the  same 
order  of  time  ;  in  the  latter,  an  interpretation  is 
given  of  the  identical  same  words.  In  all  these 
cases,  the  question  of  fact  to  come  before  a  jury  is, 
whether  the  alteration  be  colorable  or  not  ?  There 
must  be  such  a  similitude  as  to  make  it  probable  and 
reasonable  to  suppose  that  one  is  a  transcript  of  the 
other,  and  nothing  more  than  a  transcript.  So,  in 
the  case  of  prints,  no  doubt  different  men  may  take 
engravings  from  the  same  picture.  The  same  prin- 
ciple holds  with  regard  to  charts,  whoever  has  it  in 
his  intention  to  publish  a  chart,  may  take  advantage 
of  all  prior  publications.  There  is  no  monopoly  of 
the  subject  here,  any  more  than  in  the  other  in- 
stances ;  but  upon  any  question  of  this  nature,  the 
jury  will  decide  whether  it  be  a  servile  imitation  or 
not."^ 

So,  also.  Lord  Kenyon,  in  an  action  for  pirating  a 
book  of  chronology,  said,  "  The  main  question  here 
is,  whether  in  substance  the  work  is  a  copy  and 
imitation  of  the  other  ;  for  undoubtedly  in  a  chrono- 
logical work  the  same  facts  must  be  related."  - 

'  Sayrc  v.  Moore,    1   East,  3G1,         *  Trusler    v.    Murray,    1    East, 
362,  n.  363,  n.     See  also,  for  applications 

22* 


258 


LAW    OF    COPYRIGHT. 


Mr.  Justice  Story,  in  a  case  where  the  same  ques- 
tion arose,  held  that  the  resemblances  in  the  parts 
and  pages  which  correspond,  must  be  so  close,  full, 
uniform  and  striking,  as  fairly  to  lead  to  the  conclu- 
sion that  the  one  book  is  a  substantial  copy  of  the 
other,  or  mainly  borrowed  from  it  :  in  short,  that 
there  is  a  substantial  identity  between  them.^     The 


of  the  same  doctrine.  Gary  v. 
Longman,  1  East,  358.  Mathew- 
son  V.  Stockdale,  12  Ves  270. 
Longman  v.  Winchester,  16  Ves. 
269.  Wilkins  v.  Aiken,  17  Ves. 
422. 

'  Emerson  v.  Davies,  3  Story's 
R.  768.  In  this  case  the  court 
said,  "  The  case,  therefore,  comes 
back  at  last  to  the  naked  considera- 
tion, whether  the  book  of  Davies, 
in  the  parts  complained  of,  has  been 
copied  substantially  from  that  of 
Emerson,  or  not.  It  is  not  suffi- 
cient to  show,  that  it  may  have 
been  suggested  by  Emerson's,  or 
that  some  parts  and  pages  of  it 
have  resemblances,  in  method  and 
details  and  illustrations,  to  Emer- 
son's. It  must  be  further  shown, 
that  the  resemblances  in  those  parts 
and  pages  are  so  close,  so  full,  so 
uniform,  so  striking,  as  fairly  to 
lead  to  the  conclusion  that  the  one 
is  a  substantial  copy  of  the  other, 
or  mainly  borrowed  from  it.  In 
short,  that  there  is  substantial  iden- 
tity between  them.  A  copy  is  one 
thing,  an  imitation  or  resemblance 
another.  There  are  many  imita- 
tions of  Homer  in  the  iEneid  ;  but 
no  one  would  say  that  the  one 
was  a  copy  from  the  other.  There 
may  be  a  strong  likeness  without  an 
identity  ;  and  as  was  aptly  said  by 
the  learned  counsel  for  the  plaintiff 
in  the  close  of  his  argument.  Fades 
non  omnibus   una,    nee  diversa    ta- 


men,  sed  ijualem  debet  esse  sororum. 
The  question  is,  therefore,  in  many 
cases,  a  very  nice  one,  what  degree 
of  imitation  constitutes  an  infringe- 
ment of  the  copyright  in  a  par- 
ticular work.  It  is  very  clear  that 
any  use  of  materials,  whether  they 
are  figures  or  drawings,  or  other 
things  which  are  well-known  and 
in  common  use,  is  not  the  subject 
of  a  copyright,  unless  there  be 
some  new  arrangement  thereof. 
Still,  even  here,  it  may  not  always 
follow,  that  any  person  has  a  right 
to  copy  the  figures,  drawings,  or 
other  things,  made  by  another, 
availing  himself  solely  of  his  skill 
and  industry,  without  any  resort  to 
such  common  source."  And  after 
commenting  on  the  cases  of  Bar- 
field  V.  Nicholson,  (2  Sim.  &  Stu. 
1,)  and  the  other  authorities  cited 
in  the  last  preceding  note,  the 
learned  judge  said,  "So  that,  I 
think,  it  may  be  laid  down  as  the 
clear  result  of  the  authorities  in 
cases  of  this  nature,  that  the  true 
test  of  piracy  or  not  is  to  ascertain 
whether  the  defendant  has,  in  fact, 
used  the  plan,  arrangements,  and 
illustrations  of  the  plaintiff,  as  the 
model  of  his  own  book,  with  color- 
able alterations  and  variations  only 
to  disguise  the  use  thereof;  or 
whether  his  work  is  the  result  of 
his  own  labor,  skill,  and  use  of 
common  materials  and  common 
sources  of  knowledge,  open  to  all 


PROOF    OF    PIRACY.  259 

question  therefore,  comes  to  this,  in  almost  all 
such  cases,  whether  the  defendant  has,  in  substance 
copied  from  the  plaintiff's  work,  with  merely  color- 
able alterations  and  devices,  to  disguise  the  copying, 
or  whether  the  resemblances  are  merely  accidental, 
and  naturally  or  necessarily  grew  out  of  the  subject, 
without  any  use  of  the  plaintiff's  work.  If  the  court 
can  see  proof  that  the  defendant  had  the  work  of 
the  plaintiff  before  him,  and  used  it  as  a  model  for 
his  own,  in  copying  and  imitating  it,  without  drawing 
from  common  sources  or  common  materials,  it  will 
hold  the  resemblances  to  be  not  accidental,  and  not 
necessary,  notwithstanding  the  alterations  and  dis- 
guises which  may  have  been  introduced.^ 

Many  persons  seem  to  labor  under  the  mistake  of 
supposing  that  books  of  the  character  of  compila- 
tions may  be  used  with  impunity  ;  and  that,  gene- 
rally, where  the  materials  made  use  of  by  an  author 
can  be  traced  to  other  sources,  his  copyright  cannot 
prevent  the  use  of  those  materials  by  others.  The 
whole  distinction,  in  such  cases,  which  is  entirely 
overlooked  by  those  who  set  up  this  kind  of  defence, 
is  this  ;  that  every  subsequent  writer  has  a  right  to 
resort  to  the  common  sources  for  the  same  learning, 

men,    and    tlic     resemblances    are  '  Ibid.     It   is  not  necessary,    to 

cither  accidental  or  arising  from  the  amount  to  piracy,  that  the  one  work 

nature   of    the   subject.       In  other  should  be  a  copy  of  the  other,  and 

words,    whether    the     defendant's  not  an  imitation.     There  may  be  a 

book   is   quoad   hoc,    a    servile    or  close  imitation,  so  close  as  to   be  a 

evasive  imitation  of  the  plaintiff's  mere  evasion  of  the  copyright,  with- 

work,  or  a  bona  fide  original   com-  out  being  an  exact  and  literal  copy, 

pilation  from  other  common  or  inde-  Ibid. 
pendent  sources." 


260 


LA.W    OF    COPYRIGHT. 


and  to  make  use  of  it  at  his  pleasure  ;  but  if  he 
takes  it  from  one  whose  book  is  protected  by  copy- 
right, who  has  collected  and  arranged  it  in  a  form 
and  method  peculiar  to  himself,  and  gives  it  out  to 
the  world  in  that  form,  without  resorting  to  the 
original  sources,  he  is  guilty  of  piracy.^  Thus,  if  a 
person  prepares  notes  to  an  old  work,  the  materials 
of  which  are  selected  from  various  authors  who  have 
written  at  different  periods,  but  are  collected  and 
embodied  by  him  for  the  first  time,   it  is  piracy  to 


'  "  There  is  no  foundation  in 
law,"  says  Mr.  Justice  Story,  "  for 
the  argument,  that  because  the 
same  sources  of  information  are 
open  to  all  persons,  and  by  the  ex- 
ercise of  their  own  industry  and 
talents  and  skill,  they  could,  from 
all  these  sources,  have  produced  a 
similar  work,  one  party  may  at 
second  hand,  without  any  exercise 
of  industry,  talents,  or  skill,  bor- 
row from  another  all  the  materials, 
which  have  been  accumulated  and 
combined  together  by  him.  Take 
the  case  of  a  map  of  a  county,  or 
of  a  state,  or  an  empire  ;  it  is  plain, 
that  in  proportion  to  the  accuracy 
of  every  such  map,  must  be  its 
similarity  to,  or  even  its  identity 
with,  every  other.  Now,  suppose 
a  person  has  bestowed  his  time  and 
skill  and  attention,  and  made  a  large 
series  of  topographical  surveys  in 
order  to  perfect  such  a  map,  and 
has  therel)y  produced  one  far  ex- 
celling every  existing  map  of  the 
same  sort  It  is  clear,  that  not- 
withstanding this  production,  he 
caimol  supersede  the  rijjht  of  any 
other  person  to  use  the  same  means 
by  similar  surveys  and  labors  to 
accomplish  the  same  end.  13ut  it 
is  just   as  clear,   that  he   has  no 


right,  without  any  such  surveys  and 
labors,  to  sit  down  and  copy  the 
whole  of  the  map  already  produced 
by  the  skill  and  labors  of  the  first 
party,  and  thus  to  rob  him  of  all 
the  fruit  of  his  industry,  skill,  and 
expenditures.  It  would  be  a  down- 
right piracy." 

"  Neither  is  it  of  any  consequence 
in  what  form  the  works  of  another 
author  are  used  ;  whether  it  be  by 
a  simple  reprint  or  by  incorporating 
the  whole  or  a  large  portion  there- 
of in  some  larger  work.  Thus, 
for  example,  if  in  one  of  the  large 
Encyclopaedias  of  the  present  day, 
the  whole  or  a  large  portion  of  a 
scientific  treatise  of  another  author, 
as,  for  examjjle,  one  of  Dr.  Lard- 
ner's  or  Sir  John  Herschel's,  or 
Mrs.  SomerviJle's  treatises,  should 
be  incorporated,  it  would  be  just  as 
much  a  piracy  upon  the  copyright, 
as  if  it  were  published  in  a  single 
volume."  Gray  t).  Russell,  1  Story's 
R.  11,  18.  See  also,  Emerson  v. 
Davies,  3  Story's  R.  768.  Bar- 
field  V.  Nicholson,  2  Sim.  &  Stu. 
6.  Wyatt  V.  Barnard,  3  V.  &  B.  77. 
Matthewson  v.  Stockdale,  2  Ves. 
270.  Wilkins  v.  Aiken,  17  Ves. 
422.  Merlin,  Rep.  de  Jurisp,  tit. 
Contrefatjon,  vol.  3,  p.  701,  et  seq. 


TROOF    OF    PIRACY.  261 

transcribe  them,  and  it  is  no  defence  to  show  that 
any  other  person  miglit  have  made  a  similar  selec- 
tion and  compilation.^  In  such  cases,  if  the  same 
matter  is  found  expressed  in  the  same  phraseology, 
or  the  same  materials  are  found  arranged  in  the 
same  form  and  method,  in  two  books,  a  violent  pre- 
sumption arises  that  the  author  of  the  later  coi)ied 
from  the  earlier  book,  and  did  not  resort  to  the  com- 
mon sources.  This  presumption  will  approach  more 
or  less  near  to  being  conclusive,  according  to  the 
identity  of  the  two  works." 

Another  and  more  difficult  question  may  arise, 
where  an  author  has  directly  made  use  of  the  work 
of  a  previous  writer,  with  the  bona  fide  intention  of 
adding  to  and  improving  the  information  which  the 
wants  of  the  public  may  require,  upon  the  particular 
subject.  This  question  occurs  most  frequently  in 
relation  to  all  that  class  of  works  devoted  to  statisti- 
cal or  other  information.  There  are  dicta  of  English 
judges,  which  seem  to  recognize  the  right  of  using 
previous  publications  of  this  kind,  with  real  improve- 
ments and  additions  ;^  and  there  is  one  case,  at  Nisi 
Prius,  where  a  verdict  is  reported  to  have  been  found 
upon  this  principle,  under  the  direction  of  Lord 
Mansfield.  It  was  a  case  of  charts  ;  and  his  lordship 
instructed  the  jury,  that  i.\hey  found  the  defendant. 


'  Gray  v.  Russell,  1  Story's  R.  ^  The   most   important    of  those 

11-  dicta    have    been    examined,    ante, 

*  Ibid.  Emerson  ('.  Davies,  3  Sto-  in    connection    with  the  subject  of 

ry's  R.     See  also,  ante,  Chap.  II.  quotation. 


262 


LAW    OF    COPYRIGHT. 


although  he  used  the  plaintiff's  chart,  had  been  cor- 
recting errors,  and  not  servilely  copying,  they  should 
find  a  verdict  for  the  defendant  ;  but  that  if  it  was 
a  mere  servile  imitation,  they  should  find  for  the 
plaintiff".^ 


'  Sayre  v.  Moore,  at  Guildhall, 
1785.  Reported  1  East,  3G1,  n.  b. 
It  is  manifest  tliat  the  verdict  was 
carried  upon  the  strong  testimony 
of  the  witnesses  for  the  defendant, 
and,  as  T  conceive,  against  principle. 
The  following  is  the  report,  but  the 
source  from  which  it  was  derived  is 
not  stated.  "  The  charts  which 
had  been  copied  were  four  in  num- 
ber, which  Moore  had  made  into  one 
large  map.  Tt  appeared  in  evidence 
that  the  defendant  had  taken  the  bo- 
dy of  his  publication  from  the  work 
of  the  plaintiffs,  but  that  he  had 
made  many  alterations  and  improve- 
ments thereupon.  It  was  also  prov- 
ed that  the  plaintiffs  had  originally 
been  at  a  great  expense  in  procuring 
materials  for  these  maps.  Delaro- 
chett,  an  eminent  geographer  and 
engraver,  had  been  employed  by  the 
plaintiffs  in  the  engraving  of  them. 
He  said  that  the  present  charts  of 
the  plaintiffs  were  such  an  improve- 
ment on  those  before  in  use,  as 
made  an  original  work.  Besides 
their  having  been  laid  down  from  all 
the  charts  and  maps  extant,  they 
were  improved  by  many  manuscript 
journals  and  printed  books  and  man- 
uscript relations  of  travellers :  he 
had  no  doubt  the  materials  must 
have  cost  the  plaintiffs  between 
3000/.  and  4000/.,  and  that  the  de- 
fendant's chart  was  taken  from  these 
of  the  plaintiffs,  with  a  few  altera- 
tions. In  answer  to  a  question  from 
the  court,  whether  the  defendant  had 
pirated  from  the  drawings  and  pa- 
pers, or  from  the  engravings,  he 
answered,  from  the  engravings.  — 


Winterfelt,  an  engraver,  said  he 
was  actually  employed  by  the  de- 
fendant to  take  a  draft  of  the  Gulf 
Passage  (in  the  West  Indies)  from 
the  plaintiffs'  map. 

"  Many  witnesses  were  called  on 
behalf  of  the  defendant,  amongst 
others  a  Mr.  Stephenson  and  Admi- 
ral Campbell.  Mr.  Stephenson  said 
he  had  carefully  examined  the  two 
publications  ;  that  there  were  very 
important  differences  between  them, 
much  in  favor  of  the  defendant's. 
That  the  plaintiffs'  maps  were 
founded  upon  no  principle  ;  neither 
upon  the  principle  of  the  Mercator, 
nor  the  plain  chart,  but  upon  a  corrup- 
tion of  both.  That  near  the  equator 
the  plain  chart  would  do  very  well, 
but  that  as  you  go  further  from  the 
equator,  there  you  must  have  re- 
course to  the  Mercator.  That  there 
were  very  material  errors  in  the 
plaintiffs'  maps.  That  they  were 
in  many  places  defective  in  pointing 
out  the  latitude  and  longitude,  which 
is  extremely  essential  in  navigating. 
That  most  of  these,  as  well  as  errors 
in  the  soundings,  were  corrected  by 
the  defendant.  Admiral  Campbell 
observed,  that  there  were  only  two 
kinds  of  charts,  one  called  a  plain 
chart,  which  was  now  very  little 
used  ;  the  other,  which  is  the  best, 
called  the  Mercator,  and  which  is 
very  accurate  in  the  degrees  of  lati- 
tude and  longitude.  That  this  dis- 
tinction was  very  necessary  in  the 
higher  latitudes,  but  in  places  near 
the  equator  it  made  little  or  no  dif- 
ference. That  the  plaintiffs'  maps 
were  upon  no  principle  recognized 


CORRECTION    OF    ERRORS. 


2G3 


The  doctrine  which  this  case,  if  correctly  report- 
ed, explicitly  sanctions,  is,  that  where  a  work, 
though  protected  by  statute,  is  erroneous,  any  per- 
son may  make  a  direct  use  of  it,  copying  the  whole, 
provided  he  corrects  the  errors,  without  resorting  to 
the  original  sources  of  information,  or  without  mak- 
ing a  new  survey,  in  the  .case  of  maps  or  charts. 
This  doctrine  may  be  very  convenient  in  some  of  its 
aspects  ;  but  it  admits  of  great  doubt,  whether  it  is 
consistent  with  the  rights  of  original  authors.  The 
question  is  not,  whether   the  author  of  the  improve- 


amono-  seamen,  and  no  rules  of  nav- 
igation could  be  applied  to  them  ; 
and  they  were  therefore  entirely 
useless. 

"  Lord  Mansfield,  C.  J.  The  rule 
of  decision  m  this  case  is  a  matter  of 
great  consequence  to  the  cciuniry. 
In  deciding  it,  we  must  take  care  to 
guard  against  two  extremes,  equally 
prejudicial  ;  the  one,  that  men  of 
ability,  who  have  employed  their 
time  for  the  service  of  the  commu- 
nity, may  not  be  deprived  of  their 
just  merits,  and  the  reward  of  their 
ingenuity  and  labor  ;  the  other,  that 
the  world  may  not  bo  deprived  of 
improvements,  nor  the  progress  of 
the  arts  be  retarded.  The  act  that 
secures  copyright  to  authors  guards 
against  the  piracy  of  the  words  and 
sentiments  ;  but  it  docs  not  prohibit 
writing  on  the  same  subject.  As  in 
the  case  of  histories  and  dietiona- 
ries.  In  the  first,  a  man  m:iy  give 
a  relation  of  the  same  facts,  and  in 
the  same  order  of  time  ;  in  the  latter 
an  interpretation  is  given  of  the 
identical  same  w'ords.  In  all  these 
cases  the  question  of  fact  to  come 
before  a  jury  is,  whether  the  altera- 
tion bo  colorable  ornoti  there  must 
be  such  a  similitude  as  to  make  it 


probable  and  reasonable  to  suppose 
that  one  is  a  transcrqit  of  the  other, 
and  nothing  more  than  a  transcript. 
So  in  the  case  of  prints,  no  doubt 
different  men  may  take  engravings 
from  the  same  picture.  The  same 
principle  holds  witii  regard  to  charts. 
WMioever  has  it  in  his  intention  to 
publish  a  chart,  may  take  advant.ige 
of  all  prior  publications.  There  is 
no  monopoly  of  the  subject  here, 
any  more  than  in  the  other  instances, 
but  upon  any  queslion  of  this  nature 
the  jury  will  decide  whether  it  be  a 
servile  imitation  or  not.  If  an  erro- 
neous chart  be  m:idc,  God  forl)id  it 
should  not  be  corrected  even  in  a 
small  degree,  it  it  thereby  become 
more  serviceable  and  useful  for  the 
purposes  to  which  it  is  applied.  But 
here  you  are  told,  that  there  are  va- 
rious and  very  iiialerial  alterations. 
This  chart  of  ilie  [daintiffs"  i;;  upon 
a  wrong  principle,  inapplicable  to 
navigation.  The  defendant  there- 
fore has  been  correcting  errors,  and 
not  servilely  copying.  If  you  think 
so,  you  will  find  for  the  defendant ; 
if  you  think  it  is  a  mere  servile  imi- 
tation, and  pirated  from  the  other, 
you  will  find  for  the  plaintiffs."  — 
Verdict  for  defendant. 


264  LAW    OF    COPYRIGHT. 

ment  and  additions  to  an  old  work  has  a  copyright 
in  the  additions  and  improvements.  Of  this,  there 
can  be  no  doubt. ^  But  the  question  is,  whether  a 
work,  at  the  time  being  under  the  protection  of  the 
statute,  can  be  taken  as  the  subject  of  an  improve- 
ment.- 

It  is  quite  clear,  that  every  part  of  the  original 
work  is  under  the  protection  of  the  law.  Where  the 
defendant  takes  a  part  of  the  original  work,  without 
altering  it,  he  takes  what  requires  no  improvement, 
by  directly  copying  it.  AVhy  should  the  addition  of 
valuable  original  matter  of  his  own  give  him  a  right 
to  do  that  which  he  cannot  do,  where  his  alterations 
and  additions  are  merely  colorable  ?  In  the  one  case, 
he  seeks  to  disguise  the  fact  of  having  copied  from  the 
plaintiff;  in  the  other,  he  does  not  conceal  the  copy- 
ing, but  says  he  has  added  valuable  original  matter 
of  his  own.  In  both  cases,  the  question  must  recur, 
whether  he  has  taken  and  used  what  belonged  to 
another  ?  The  general  doctrine  of  the  law  is,  that 
"  none  are  entitled  to  save  themselves  trouble  and 
expense,  by  availing  themselves,  for  their  own  profit, 
of  other  men's  works,  still  entitled  to  the  protection 
of  copyright  ;"^  and  the  modern  course,  in  courts  of 

'  Gary  v.  Longman,  1  East,  358.  existing  grant,  the  inventor  of  the 

Mason  v.  Murray,  cited  S.  C.  improvement   must   wait  until  that 

*  In  the  analogous  case  of  patent  grant   has   expired.     But    he   may 

rights,    the   subject  of  an    existing  take  out  a  patent  for  the  improve- 

and  valid  patent  cannot  be  taken  as  ment  by  itself,  and  sell  it.     Godson 

the  superstructure  of  an  improve-  on  Patents,  p.  62,  2d  edit, 

ment.     If  the  improvement  cannot  '  Per   Lord   Langdale,   M.  R.  in 

be  used  without  the  subject  of  an  Lewis  v.  Fullerton,  2  Beav.  6. 


ABRIDGMENTS. 


2G5 


equity,  is,  to  grant  an  injunction  as  to  parts  of  a 
work  pirated,  although  it  contains  much  that  is 
orisfinal.' 


4.  Piracy,  by  reproducing  the  whole  or  a  part  of  a  book, 
under  an  abridged  form. 

We  have  now  to  consider  luider  what  circum- 
stances an  ABRIDGMENT  will  coustitutc  a  violation 
of  copyright.  It  has  already  been  intimated,  that 
the  general  doctrine  of  the  English  law  on  the  sub- 
ject of  Abridgments  needs  revision.  I  propose  here 
to  examine  the  authorities,  and  to  suggest  some  rea- 
sons why  the  doctrine  which  they  seem  to  sanction 
cannot  be  carried  out,  consistently  with  the  estab- 
lished rights  of  literary  property. 

The  earliest  case,  in  which  there  is  a  distinct  re- 
cognition of  abridgments,  is  Gyles  v.  Wilcox,  in 
which  the  book  charged  to  have  been  infringed  was 
Sir  Matthew  Hale's  Pleas  of  the  Crown.  In  this  case 
a  distinction  was  taken  between  abridgments  "fairly 
made,"  and  works  "  colorably  shortened."  The 
doctrine  was  recognized,  that  a  real  and  fair  abridg- 
ment may  with  propriety  be  called  a  new  book, 
because  the  invention,  learning  and  judgment  of 
the  maker-  are  shown  in  it.  But  the  book  in  ques- 
tion was  held  not  to  be  a  fair  abridgment,  but 
merely  "  colorably  shortened,"    by  leaving  out  cer- 

'  Ibid.  Mawman  v.  Tegg,  2  Russ.  385.    Folsom  r.  IMarsli,  2  Story,  100. 
23 


266  LAW    OF    COPYRIGHT. 

tain  passages  and  translating  Latin  and  French  quo- 
tations.^ 

The  next  was  a  case  relating  to  no  less  a  book 
than  Dr.  Johnson's  Rasselas.  The  defendant  printed 
part  of  the  narrative  in  a  magazine,  leaving  out  the 
reflections  ;  and  justified  upon  the  ground  of  a  fair 
abridgment,  among  other  points  of  defence.  Sir 
Thomas  Clarke,  M.  R.  said,  that,  "no  certain  line 
can  be  drawn,  to  distinguish  a  fair  abridgment  ;  but 
every  case  must  depend  on  its  own  circumstances." 
It  appeared  that  a  small  quantity  only  had  been  ab- 
stracted, and  the  plaintiffs  had  themselves  printed  a 
part  of  the  work  in  a  magazine  ;  a  circumstance 
upon  which  the  court  chiefly  relied,  as  showing  that 
they  could  not  be  prejudiced  by  what  the  defendants 
had  done.  The  learned  judge,  however,  seems  to 
have  recognized  the  doctrine  of  fair  abridgments, 
inasmuch  as  he  said  that  if  he  were  to  hold  this  to  be 
elusory,  he  must  hold  every  abridgment  to  be  so  ; 
and  he  seems  to  have  considered,  that  when  a  fair 


'   Gyles  V.  Wilcox,    2  Atkyns,  in  them,  and  in  many  cases  are  ex- 

141.    143.     Lord    Hardwicke   said,  tremely   useful.     Though  in   some 

"  Where  hooks  are  colorabiy  short-  instances  prejudicial,   by   mistaking 

encd    only,    they    are    undoubtedly  and  curtailing  the  sense  of  the  au- 

within    the  meaning   of  the  act  of  thor.     If  1  should   extend  the  rule 

parliament,  and   arc  a  mere  evasion  so  far  as  to  restrain  all  abridgments, 

of  the  statute,  and  cannot  be  called  it  would  be  of  mischievous  corjse- 

an  abridgment.     But  this  must  not  quence,  for  the  books  of  the  learned, 

be  carried  so  far  as  to  restrain   per-  hsJournc/sdes  Scavann,  and  several 

sons   from  making  a  real  and  fair  others    that    might   be    mentioned, 

abridgment,    lor    ahridjzments   may  would  be  brought  within  the  mean- 

with  great  propriety  be  called  a  new  ing  of  the  act  of  parliament."     See 

book,  because  not  only   the   paper  also   the  case  ot   Read  v.  Hodges, 

and  print,  but  the  invention,  learning  referred  to  in  I'onson  u.  Walker,  3 

and  judgment  of  the  author  is  shown  Svvanston,  672,  679. 


ABRIDGMENTS.  2G7 

abridgment  is  made,  the  question  of  injury   to   tlie 
original  author  cannot  be  considered.' 

In  the  next  case,  we  find  for  the  first  time  an 
effort  to  define  a  true  and  proper  abridgment.  The 
book  in  question  was  an  abridgment  of  Hawksworth's 
Voyages.  The  rule  was  laid  down  by  Lord  Chan- 
cellor Apsley,  assisted  by  Sir  William  Blackstone  ; 
and  it  seems  to  have  been  adjudged,  that  where  the 
understanding  is  employed  in  retrenching  unneces- 
sary and  uninteresting  circumstances,  which  rather 
deaden  the  narration,  it  is  not  an  act  of  plagiarism 
upon  the  original  work,  nor  against  any  property  of 
the  author  in  it,  but  an  allowable  and  meritorious 
work.^ 

A  few  years  afterwards,  Sir  Thomas  Sewell,  M.  R. 
in  a  case  of  an  abridgment  of  a  biography,  said  that 
if  it  was  a  fair  bona  fide  abridgment  of  the  larger 
work,  several  cases  in  the  court  of  chancery  had  de- 

'  Dodsley  t'.  Kinnersley,  Ambl.  an  abrklgaient  in  the  nature  of  a 

403.     The  report  is  very  imperfect,  new  and  a  meritorious  work. 

*  Anon.  Lofft's  R.  775.  "  On  a  "  That  this  iiad  been  done  by  Mr. 
bill  ])r;iyinfj  an  iiijunciion  against  Newbery,  whose  edition  mitjht  be 
an  edition  by  Mr.  Newbery  of  an  read  in  the  fourth  part  of  the  time, 
abridginonl  of  Dr.  llawkesworth's  and  all  the  substance  preserved,  and 
Voyases,  the  Lord  Chancellor  was  conveyed  in  language  as  good  or 
of  opinion  that  this  abridgment  of  better  than  in  tlie  original,  and  in  a 
the  work  was  not  any  violation  of  more  agreeable  and  useful  manner, 
the  author's  property  whereon  to  That  he  had  consulted  Mr.  Justice 
ground  an  injunction.  That  to  con-  Blackstone,  whose  knowledge  and 
stitute  a  true  and  proper  abridgment  skill  in  his  profession  was  univer- 
of  a  work,  the- whole  must  be  pre-  sally  known,  and  who  as  an  author 
served  in  its  sense  :  and  then  the  himself  had  done  honor  to  his  coun- 
act  of  abridgment  is  an  act  of  under-  try.  That  they  had  spent  some 
standing,  employed  in  carrying  a  hours  together,  and  were  agreed 
large  work  into  a  smaller  compass,  that  an  abridgment,  where  the  un- 
and  rendering  it  less  expensive  and  derstanding  is  employed  in  retrench- 
more  convenient  both  to  the  time  ing  unnecessary  and  uninteresting 
and  use  of  the  reader.    Which  made  circumstances,  which  rather  deaden 


268  LAW    OF    COPYRIGHT. 

cided  that  an  injunction  should  not  be  granted  ;  and 
he  referred  to  the  case  of  Hawkesworth's  Voyages. 
But  it  being  shown  that  passages  were  taken  verbatim 
from  the  original  work,  he  granted  an  injunction, 
until  answer  and  further  order. ^ 

In  a  subsequent  case,  an  attempt  was  made  to  jus- 
tify a  selection  of  cases  from  the  Term  Reports, 
upon  the  ground  of  a  fair  abridgment ;  but  it  appear- 
ed that  the  cases  had  been  arranged  under  heads  and 
titles,  instead  of  chronologically,  and  in  this  way  had 
been  copied  verbatim.  An  injunction  was  accord- 
ingly granted.^ 

The  foregoing  are  all  the  English  authorities  on 
this  subject,  and  they  show  that  for  a  considerable 
length  of  time  the  notion  has  prevailed,  that  what  is 
called  a  bona  fide  abridgment  may  be  made,  without 
violating  tbe  right  of  property  of  the  original  author.^ 


the  narrative,  is  not  an  act  of  plagi-  cannot  be  a  monopoly  of  a  general 

arism  upon  the  original  work,  nor  subject,  it  appears  that  books  them- 

against  any  property  of  the  author  selves  for  certain   purposes,  besides 

in  it,  but  an  allowable  and  meritori-  the  mere  act  of  reading  them,  may 

ous  work.     And   that  this  abridg-  be   used  by  the  public.     They  are, 

ment  of  Mr.  Newbery's  falls  within  in  fact,    general   subjects  —  data  — 

these     reasons     and     descriptions,  which  may  afford  opportunites  for 

Therefore   the   bill   praying   an  in-  other   persons   besides   the  authors 

junction  ought  to  be  dismissed."  to  exercise  their  ingenuity.     They 

>  Bell  V.  Walker,  1  Bro.  Ch.  R.  may  be  taken  as  the  groundwork  of 

451.  other  literary  labors.     Thus  a  copy- 

^  Bntterworlh  ti.  Robinson,  5  Ves.  right  may  exist  in   abridgments  or 

709.  translations  of  works.     Also  in  the 

'  Among  text-writers,  Mr.  God-  notrs  ami  additions  printed  in  a  new 

son   has  laid  down  a  doctrine   too  edition  of  a  book,  over  which  the 

broad  to  be  subscribed  to,  if  we  are  right  of  the    author   has    expired, 

to  continue  any  protection  to  litera-  For  one  man  may  compose  a  work, 

tare.  for  instance  in  the  Latin  language, 

"Nearly  upon  the  same  princi-  another  abridge  it,  a  third  translate 

pies,  by  which  it  is  shown  that  there  it,  and  a  fourth  write   annotations 


ABRIDGMENTS. 


269 


In  America,  the  subject  has  been  only  incidentally 
discussed.  The  authorities  referred  to  in  the  note 
below,  will  fully  justify  an  examination  of  the  ques- 
tion dc  novo} 


upon  it ;  and  every  one  of  them  will 
acciuiro  a  copyright  in  the  product 
of  liis  own  ingenuity  and  lahor. 

"  Many  valuable  works  are  so 
voluminous  that  abridgments  of 
them  are  extremely  useful.  To 
make  them,  some  judgment  must 
be  exercised,  and  some  labor  em- 
ployed; and  therefore  the  authors 
of  them  ought  certainly  to  be  en- 
couraged. In  general,  an  abridg- 
ment tends  to  the  advantage  of  the 
author,  if  the  composition  be  good  ; 
and  may  serve  the  end  of  an  adver- 
tisement. The  inquiry,  whether 
the  work  is  prejudiced  by  the  man- 
ner of  making  the  abridgment,  can- 
not be  entertained."  Godson,  page 
341. 

'  Mr.  Justice  Story,  in  Gray  v. 
Russell,  1  Story's  R.  19,  21,  said, 
"  In  some  cases,  indeed,  it  may  be 
a  very  nice  question,  what  amounts 
to  a  piracy  of  a  work,  or  not.  Thus 
if  large  extracts  are  made  therefrom 
in  a  review,  it  might  be  a  question, 
whether  those  extracts  were  de- 
signed bona  fide  for  the  mere  pur- 
pose of  criticism,  or  were  designed 
to  supersede  the  original  work  un- 
der the  pretence  of  a  review,  by 
giving  its  substance  in  a  fugitive 
form.  The  same  difilculty  may 
arise  in  relation  to  an  abridgment  of 
an  original  work.  The  question,  in 
such  a  case,  must  be  compounded  of 
various  considerations  ;  whether  it 
be  a  bona  fide  al)ri(lgmont,  or  only 
an  evasion  by  the  omission  of  some 
unimportant  parts  ;  whether  it  will, 
in  its  present  form,  prejudice  or  su- 
persede the  original  work  ;  whether 
it  will  be  adapted  to  tlie  same  class 
of  readers  ;  and  many  other  consid- 
23* 


erations   of  the   same    sort,  which 
may  enter  as  elements,  in  ascertain- 
ing whether  there  had  been  a  piracy 
.or  not.     Although   the  doctrine  is 
often  laid  down   in   the  books,  that 
an  abridgment  is  not  a  piracy  of  the 
oiiginal  copyright;  yet   this  propo- 
sition must  be  received  with   many 
qualifications.     In  many  cases,  the 
question    may  naturally  turn    upon 
the  point,  not  so  much  of  the  quan- 
tity as  of  the  value  of  the  selected 
materials.       As    was    significantly 
said  on  another  occasion,  Nvn  nu- 
mcrantur,  ponderanlur.     The  quin- 
tessence of  a  work  may  be  piratical- 
ly extracted,  so  as  to  leave  a  mere 
caput  mortuum,  by  the  selection  of 
all  the  important  passages  in  a  com- 
paratively moderate  space.     In  the 
recent  case    of   Bramwell  v.  Hal- 
comb,    (3  Mylne  &  Craig,  737,)   it 
was  held,  that  the  question,  whether 
one  author  has  made  a  piratical  use 
of  another's  work,  does  not   neces- 
sarily depend  upon   the  quantity  of 
that  work,  which   he   has  quoted  or 
introduced  into  his  own  book.     On 
that  occasion.  Lord  Cottenham  said, 
'  When  it  comes  to  a  question  of 
quantity,    it   must   be   ver}'  vague. 
One  writer  might  take  all  the  vital 
part   of  another's   book,  though  it 
might  be  but  a  small   proportion  of 
the  book  in  quantity.     It  is  not  only 
quantity,  but  value,  which  is  looked 
to.     It  is  useless  to  look  to  any  i)ar- 
ticular  cases  about  quantity.'     The 
same  subject  was  a  pood  deal  con- 
sidered by  the  same   learned  judge 
in   Saunders  r.  Smith,  (3  Mvlne  & 
Craig  K.   711,728,   729,)   w'ith  re- 
ference   to    copyright    in    Heporis ; 
and  how  far  anotlier  person  was  at 


270 


LAW    OF    COPYRIGHT. 


The  definition  of  an  abridgment  given  in  the  case 
decided  by  Lord  Chancellor  Apsley,  has  certainly 
come  down  to  us  with  some  weight  of  authority, 
from  the   circumstance  that  he  was   assisted  by  Sir 


liberty  to  extract  the  substance  of 
such  reports,  or  to  publish  select 
cases  therefrom,  even  with  notes 
appended.  In  the  case  of  Wheaton 
V.  Peters,  (8  Pcters's  R.  591,)  the 
same  subject  was  considered  very 
much  at  large.  It  was  not  doubted 
by  the  court,  that  Mr.  Peters's  Con- 
densed Reports  would  have  been  an 
infringement  of  Mr.  Wheaton's  co- 
pyrisrht,  (supposing  that  copyright 
properly  secured  under  the  act,)  if 
the  opinions  of  the  court  had  been, 
or  could  be,  the  proper  subject  of 
the  private  copyright  by  Mr.  Whea- 
ton. But  it  was  held  that  the  opin- 
ions of  the  court,  being  published 
under  the  authority  of  congress, 
were  not  the  proper  subject  of  pri- 
vate copyright.  But  it  was  as  little 
doubted  by  the  court,  that  Mr. 
Wheaton  had  a  copyright  in  his 
own  marginal  notes,  and  in  the  ar- 
guments of  counsel  as  prepared  and 
arranged  in  his  work.  The  cause 
went  back  to  the  circuit  court  for 
the  purpose  of  further  inquiries  as 
to  the  fact,  whether  the  requisites 
of  the  act  of  congress  had  been  com- 
plied with  or  not  by  Mr.  Wheaton. 
This  would  have  been  wholly  use- 
le.ss  and  nugatory,  unless  Mr. 
Wheaton's  marginal  notes  and  ab- 
stracts of  arguments  could  have  been 
the  subject  of  a  copyright  (for  that 
was  all  the  work  which  could  be 
the  subject  of  copyright ;)  so  that  if 
Mr.  Peters  had  violated  that  right, 
Mr.  Wheaton  was  entitled  to  re- 
dress." 

In  2  Story's  Eq.  Jurisp.  ^  939, 
the  learned  author  says,  "  But  what 
constitutes  a  bona  fide  case  of  ex- 
tracts, or  a  bona  fide  abridgment,  or 


a  bona  fide  use  of  common  materials, 
is  often  a  matter  of  most  embarrass- 
ing inquiry.  The  true  question,  in 
all  cases  of  this  sort,  is,  (it  has  been 
said,)  whether  there  has  been  a  le- 
gitimate use  of  the  copyright  publi- 
cation, in  the  fair  exercise  of  a  men- 
tal operation,  deserving  the  charac- 
ter of  a  new  work.  If  there  has 
been,  although  it  may  be  prejudicial 
to  the  original  author,  it  is  not  an 
invasion  of  his  legal  rights.  If  there 
has  not  been,  then  it  is  treated  as  a 
mere  colorable  curtailment  of  the 
original  work,  and  a  fraudulent 
evasion  of  the  copyright.  But  this 
is  another  mode  of  stating  the  diffi- 
culty, rather  than  a  test,  affording  a 
clear  criterion  to  discriminate  be- 
tween the  cases." 

Mr.  Chancellor  Kent,  referring  to 
the  case  of  Dodsley  v.  Kinnersley, 
says,  "  This  lalitudinary  right  of 
abridgment  is  liable  to  abuse,  and  to 
trench  upon  the  copyright  of  the 
author.  The  question  as  to  a  bona 
fide  abridgment  may  turn  not  so 
much  upon  the  quantity  as  the  value 
of  the  selected  materials."  2  Kent's 
Com.  382,  note. 

Lord  Campbell,  in  his  Life  of 
Lord  Hardwickc,  referring  to  the 
case  of  Gyles  v.  Wilcox,  says  ;  "I 
must  own  that  I  much  question  an- 
other rule- he  laid  down  with  respect 
to  literary  property,  although  it  has 
not  yet  been  upset.  .  .  I  confess  1 
do  not  understand  why  an  abridg- 
ment tending  to  injure  the  reputa- 
tion and  lessen  the  profits  of  the  au- 
thor, should  not  be  considered  an 
invasion  of  his  property."  Camp- 
bell's Lives  of  the  Chancellors,  v. 
56. 


ABRIDGMENTS.  271 

William  Blackstone,  brief  as  the  report  of  the  case 
is.  It  is  also  to  be  admitted,  that  the  result  to  which 
those  learned  persons  came,  is  in  accordance  with 
the  doctrine  which  had  been  previously  recognized 
by  Lord  Hardwicke,  and  which  seems,  so  far  as  the 
reported  cases  show,  to  have  been  tacitly  received 
into  the  English  law.^ 

There  can  be  no  doubt  that  the  definition  of  an 
abridgment,  given  in  the  anonymous  case  in  Lofft, 
is  correct,  in  a  critical  sense.  That  the  understand- 
ing must  be  employed  in  the  act  of  "carrying  a 
larger  work  into  a  smaller  compass,  and  rendering 
it  less  expensive,  and  more  convenient  both  to  the 
time  and  use  of  the  reader,"  and  that  when  this  is 
done,  the  person  who  does  it  exhibits,  according  to 
Lord  Hardwicke,  his  own  "  invention,  learning,  and 
judgment,"  is  obvious.  But  whether  this  can  be 
done  with  any  work  really  original  and  actually  un- 
der the  protection  of  copyright  —  whether  the  pro- 
perty of  the  original  author  can  be  taken,  and  the 
taking  be  justified,  by  any  amount  of  learning,  judg- 
ment, or  invention,  shown  in  the  act  by  him  who 
thus  appropriates  the  property  of  another  —  is  the 
great  question  which  seems  to  be  assumed,  and  not 
satisfactorily  solved  by  these  authorities.  There  are 
many  modes  in  which  the  wrongful  taker  of  another's 
property  may  exhibit  vast  talent  and  ingenuity,  and 
even  genius,  both  in  the  act  of  taking,  and  in  the  use 

^  There  has  been  no  instance  in     resisted   and   examined  willi  refer- 
which  tiie  doctrine  has  been  directly     ence  to  principle. 


272  LAW    OF    COPYRIGHT. 

which  he  makes  of  it ;  so  that  he  may  really  be  said 
to  have  incorporated  with  it  both  his  own  labor  and 
his  own  intellectual  energy.  But  the  question  of 
original  title  is  still  apt  inconveniently  to  recur  in 
such  cases.  In  like  manner,  invention,  learning, 
and  judgment  are  often  shown  in  the  appropriation 
of  the  literary  labors  of  others  ;  but  the  courts  have 
not  hesitated,  on  this  account,  to  ascertain  what  part 
of  a  book,  laboring  under  suspicion,  was  taken  from 
the  complainant ;  and  if  the  title  of  the  latter  is  made 
out,  to  grant  redress,  even  to  the  destruction  of  all 
that  the  piratical  author  can  call  his  own.^  In  the 
case  of  a  colorable  curtailment  of  the  original  work, 
there  may  be  the  exercise  of  a  mental  operation,  as 
well  as  in  a  professed  abridgment ;  and  if  the  original 
author  is  injured  by  the  latter,  as  well  as  by  the 
former,  it  seems  to  be  a  very  unsatisfactory  answer 
in  either  case,  to  say,  that  his  book  has  been  made, 
by  a  mental  operation,  to  wear  the  appearance  of  a 
new  work.  In  both  cases,  the  true  inquiry  is  —  Has 
anything  been  taken  which  belongs  to  another  ?  In 
either  case,  the  form  under  which  the  original  mat- 
ter reappears  should  be  treated  as  a  disguise ;  and 
the  extent  of  the  transformation  shows  only  the  ex- 
tent to  which  the  disguise  has  been  carried,  as  long 
as  anything  remains  which  the  original  author  can 
show  to  be  justly  and  exclusively  his  own. 

'  See  the  cases  of  Gray  v.  Rus-  Lewis  v.  Fullerton,  2  Beavan's  R. 

sell,  1  Story's  R.  11.     Emerson  v.  6.     Mawman  u.  Tegg,  2  Russ.  385, 

Davies,  3  fStorys  R.  7G8.      Bram-  390. 
well  V.  Halcomb,  3  M.  &  Cr.  737. 


ABRIDGMENTS.  273 

It  is  necessary,  therefore,  in  this  inquiry,  to  look, 
not  to  the  origin  of  the  right  of  literary  property,  for 
the  right  is  to  be  assumed,  but  to  what  that  right  in- 
cludes. When  the  author  of  a  book,  of  whatever 
kind,  possessing  the  legal  attributes  of  originality, 
has  secured  his  copyright  according  t)  the  prevailing 
law  of  his  country,  he  has  secured  the  exclusive  right 
to  print  and  publish  his  own  book.'  In  the  jurispru- 
dence with  which  we  are  concerned,  this  right  in- 
cludes the  whole  book  and  every  part  of  it  ;  for  we 
have  seen,  that  there  may  be  a  piratical  taking  of 
extracts  and  passages,  and  that  the  quantity  thus 
taken  may  be  immaterial.^  It  includes  also,  or  may 
include,  the  style,  or  language,  and  expression  ;  the 
learning,  the  facts,  or  the  narrative  ;  the  sentiment 
and  ideas,  as  far  as  their  identity  can  be  traced ; 
and  the  form,  arrangement  and  combination  which 
the  author  has  given  to  his  materials.  These  are,  or 
may  be,  all  distinct  objects  of  the  right  of  property  ; 
and  in  every  work  of  originality,  likely  to  be 
abridged,  or  capable  of  being  abridged,  they  are 
all  important  objects  of  that  right.  However  im- 
perfectly the  subject  may  have  been  regarded  in 
former  times,  it  is  now,  I  think,  to  be  regarded  as 
settled,  that  whatever  is  metaphysically  part  or 
parcel  of  the  intellectual  contents  of  a  book,  if  in  a 
just  sense  original,  is  protected  and  included  under 
the  right  of  property  vested  by  law  in  the  author  ; 

'  As  to  the  legal  stamlard  of  ori-  *  Ante, 

ginalily,  see  ante  Ch.  V. 


274  LAW    OF    COPYRIGHT. 

and  it  is  very  material  to  observe,  that  the  arrange 
ment,  the  method,  the  plan,  the  course  of  reasoning, 
or  course  of  narrative,  the  exhibition  of  the  subject, 
or  the  learning  of  the  book,  may  be,  according  to  its 
character,  as  much  objects  of  the  right  of  property, 
as  the  language  and  the  ideas. ^ 

What  then  does  the  maker  of  an  abridgment  print, 
publish  and  sell,  after  he  has  made  it  ?    He  has  been 
employed,  according  to  the  definition  above  quoted, 
"  in  retrenching  unnecessary  and  uninteresting  cir- 
cumstances, which  rather   deaden  the   narration;" 
that  is  to  say,  he  has  rejected  what  in  his  judgment 
are  redundancies.     Does  this  make  him  the  author 
or  proprietor  of  what  remains  ?    If  the  work  be  a 
history,  did  he,  the  person  abridging  it,  compile  the 
materials  into  their  present  shape,  and  describe  the 
course  of  events,  and  embody  the  whole   of  what 
constitutes  the  intellectual  contents  of  the  book,  or 
are  these  things  the  product  of  another's  labor,  re- 
search and  faculty  of  writing  ?     If  it  be  a  fictitious 
narrative,  whose  genius  created  the  characters,  and 
animated  them  with  the  sentiments  which  they  utter, 
and  invented  the  pleasing  incidents  of  their  mock 
existences,  and  wove   the  whole  into  the  novel  or 

'  Of  course  I  do  not  mean  to  give  can  avail  himself  even  of  the  learn- 
any  encouragement  to  the  idea  that  ing  and  information  collected  by  the 
a  man  may  api^ropriate  to  himself  original  author,  by  copying  from 
learning  that  is  open  to  every  one,  him  without  resorting  to  the  com- 
er that\ny  exclusive  property  can  mon  sources.  See  the  cases  of 
be  acquired  in  a  subject.  The  po-  Gray  v.  Russell,  1  Story,  U  ;  Em- 
sition  of  the  text  is  that  of  the  au-  erson  v.  Davies,  3  Story,  7G8. 
thorities,  that  no  subsequent  writer 


ABRIDGMENTS.  275 

the  poem  ;  which  exists  as  an  intellectual  whole, 
after  as  well  as  before  the  process  by  which  "  the 
unnecessary  and  uninteresting  circumstances"  are 
*'  retrenched  ?"  Or  if  it  be  a  work  of  science,  or  a 
treatise  in  any  branch  of  knowledge,  whose  are  the 
ideas,  the  course  of  reasoning  and  illustration,  the 
plan  and  analysis  of  the  subject,  and  the  collection 
and  arrangement  of  materials  which  constitute  the 
identity  of  the  book  ?  ^  These  questions  can  have 
but  one  answer  ;  and  if  the  abridgment,  in  any  given 
case,  consists  solely  in  the  reduction  of  the  bulk  of 
the  volume,  by  the  rejection  of  redundancies,  it  is  a 
mere  republication  of  a  connected  series  of  extracts, 
in  a  different  juxtaposition  from  the  original  author's, 
to  which  the  party  had  no  title  whatever.  On  the 
other  hand,  if  the  abridgment  not  only  rejects  re- 
dundancies, but  also  clothes  the  sentiments  and  ideas 
which  may  be  left,  in  different  phraseology,  then  it 
falls  under  the  predicament  of  a  colorable  alteration, 
which  cannot  escape  the  censure  of  justice. 

When  we  consider  the  incorporeal  nature  of  lite- 


'  Take  the  very  case  of  Dr.  John-  and  the  Prince   of  Abyssinia,   and 

son's  Rasselas,  and  endeavor  to  ap-  placed  iheni  in  tlic  Happy  Valley, 

ply  10  ii   Lord  Apsley's  rule,  bear-  and  sent  them  forth  in  a  series  of 

inff  in  mind  that  the  author  and  his  gemlo  trials  and  pleasing   and   sad 

assia^iis.  during  the  existence  of  the  perplexities,  in  the  world  beyond  it^ 

copyright,  had  the  sole  right  to  reap  walls  ?     Who  wrote  that  narrative? 

the  profits  of  the  publication  of  the  iS'ot,  certainly,  the  Grub  street  hack, 

whole  and   every  part  of  it.     The  who  was  employed  to    "  leave  out 

moral    reflections   ate   left  out,  the  the  reflections."      What  he  took  and 

narrative  goes  into  the  CJenih'mans  his  employers   published,   was   the 

Magazine       Whose  genius  produced  literary    property    of    another,    tiie 

thil  sl;itely   and    immortal    fiction?  profits   of  which  the  law   had  not 

Who  described  and  created  the  char-  vested  in  them, 
actors  of  Imlac,  and  the  Princess, 


276  LAW    OF    COPYRIGHT. 

ra'  y  property,  it  will  be  apparent  that  no  writer  can 
make  and  publish  an  abridgment,  without  taking  to 
himself  profits  of  literary  matter  w^hich  belong  to 
another.  It  has  been  stated,  in  a  fo /mer  chapter, 
that  literary  property  is  an  exclusive  right  to  print  a 
written  composition,  and  to  take  the  profits  thereof 
after  publication.  The  mere  definition  of  an  abridg- 
ment shows  that  the  writer  makes  use  of  a  compo- 
sition of  which  he  is  not  the  author  ;  for  whatever  he 
may  have  rejected  as  redundant,  he  does  actually 
print,  publish  and  sell,  in  an  abbreviated  form  —  and 
in  a  form  abbreviated  by  the  rejection  of  parts — a 
certain  amount  of  literary  matter,  the  profits  of  which 
exclusively  belong  to  another.  Moreover,  the  very 
form  in  which  this  matter  is  reproduced,  of  necessity 
tends  to  the  injury  of  the  true  proprietor.  The  real 
object  of  most  abridgments  is  to  undersell  the  ori- 
ginal work.  Cases  are  often  met  with,  it  is  true,  for 
which  the  apology  is  urged,  that  they  are  not  de- 
signed to  supersede  the  originals,  and  are  not  likely 
in  fact  to  do  so.  But  they  are  made  to  be  sold;  and 
if  sold,  it  is  at  least  as  consistent  with  principle  and 
analogy,  to  presume  that  the  sale  is  injurious  to  the 
original  author,  as  to  presume  that  it  is  not. 

The  argument  that  a  purchaser  would  not  have 
purchased  the  original,  if  the  abridgment  had  not 
been  thrown  in  his  way,  rests  merely  upon  conjecture 
in  most  cases.  The  fact  is  not  capable  of  proof  by 
evidence,  but  can  only  be  arrived  at  through  the 
opinions  of  third  persons.     In  the  analogous  cases  of 


ABRIDGMENTS. 


277 


piracy  by  colorable  alterations  and  disguises,  the 
law  does  not  stop  to  inquire  whether  the  purchaser 
of  the  piratical  publication  would  have  bought  the 
genuine  work.  It  presumes  damage,  to  just  the  ex- 
tent of  the  number  of  copies  sold,  and  decrees  the 
whole  profits  to  the  true  proprietor.  It  also  stops 
the  piratical  publication  ;  thereby  declaring  that  the 
true  proprietor  shall  not  be  exposed  to  the  proba- 
bility and  hazard  of  injury.  In  no  case,  after  proof 
of  piracy,  has  it  been  permitted  to  the  defendant  to 
show  by  evidence  that  his  publication  is  not  likely  to 
injure  the  plaintiff,  and  therefore  that  he  ought  to  be 
allowed  to  go  on.^ 


*  In  the  cases  of  extracts  and  quo- 
tations, where  the  amount  taken  is 
small,  the  question  of  injury  may  be 
an  element  in  determining  whetiier 
the  court  will  treat  the  extract  as  a 
piracy  ;  but  even  there,  as  we  have 
seen,  if  the  extract  may  serve  quoad 
hoc  as  a  substitute  for  the  original 
book,  it  is  to  be  treated  as  a  piracy  ; 
and  in  a  case  of  this  kind,  Lord  Cot- 
tenham  said,  that  the  plaintilf  was 
the  person  best  able  to  judge  of  the 
question  of  injury  himself,  and  that 
if  the  court  clearly  saw  that  any- 
thing had  been  done  which  tends  to 
an  injury,  it  being  done  against  a 
legal  right,  the  court  would  stop  the 
defendant's  publication.  (Campbell 
r.  Scott,  11  Simons,  31.)  But  in 
cases  of  piracy  by  copyinsr,  imitation 
and  cidorable  alteration,  the  defence 
is  wholly  unavailable,  that  the  pirat- 
ical pnl)lication  is  designed  for  a 
class  of  readers  who  would  not  have 
purchased  the  genuine  wm-k,  and  it 
is  rarely  made.  (See  Folsom  v. 
Marsh,  '2  Story's  R.  100;  Mawman 
V.  Tegg,  -2  Russ.  R.  nS5  ;  Campbell 


V.  Scott,  ut  supra.)  The  juiisdic- 
tion  of  courts  of  equity,  in  cases  of 
this  kind,  is  founded  upon  the  fact 
that  the  actual  damages  cannot  be 
traced,  and  therefore  in  order  to 
make  the  legal  right  effectual,  the 
publication  which  violates  it  is  pro- 
hibited altogether.  (Wilkins  v. 
Aiken,  17  Ves.  4"24  )  In  France, 
undrr  the  law  of  July  19th,  1793, 
the  publisher  of  a  piratical  book  is 
condemned  to  pay  to  the  true  pro- 
prietor a  suin  equivalent  to  the  price 
of  3000  copies  of  tiie  original  edi- 
tion. In  other  countries,  there  is  a 
similar  fixed  standard  of  damages. 
In  Helgium,  tlw;  number  of  copies  is 
300.  Merlin  Rep.  de  Jurisp.  Tit. 
Contrefagon,  torn.  3,  p.  717,  718. 
In  Prussia,  the  court  is  required  to 
fix  the  indemnity,  according  to  the 
circumstances,  at  a  sum  equal  to  the 
sales  of  from  50  to  1000  copies  of 
the  lawful  edition,  where  the  j)ro- 
prietor  cannot  prove  that  he  has 
suffered  greater  damages.  Renou- 
ard,  Droits  D'Auteurs,  torn.  1,  p. 
271.     In  all  these  countries,   these 


278  LAW    OF    COPYEIGIIT. 

It  is  also  to  be  considered,  that  the  publication  of 
an  abridgment  not  only  tends  to  injure  the  sale  of 
the  copies  which  the  true  proprietor  has  already 
published,  but  it  also  interferes  with  his  use  of  his 
copyright,  and  with  his  power  of  disposing  of  it. 
His  property  in  the  original  work  includes  the  right 
to  publish  it  in  any  form  which  he  may  see  fit  to 
adopt.  He  may  choose  to  publish  an  abridgment 
himself;  and  his  right  to  do  so  is  perfect,  since  he  is 
absolutely  the  proprietor  of  the  matter  embraced  in 
his  original  work.  His  copyright  must  be  held  to 
have  secured  to  him  the  right  to  avail  himself  of  the 
profits  to  be  reaped  from  all  classes  of  readers,  both 
those  who  would  purchase  his  production  in  a  cheap 
and  condensed  form,  and  those  who  would  purchase 
it  in  its  more  extended  and  costly  shape.  To  con- 
strue his  right  upon  any  narrower  terms,  would  con- 
fiine  him  to  the  paper  and  print  which  he  may  have 
selected  for  the  first  issue  of  his  work,  and  would 
deprive  him  of  the  profits  on  a  cheaper  form  of  pub- 
lication. If,  therefore,  he  sees  fit  to  publish  his  own 
work  in  a  condensed  form,  as  well  as  in  its  original 
and  more  elaborate  shape,  his  right  is  clearly  broad 
enough  to  give  him  the  power  to  do  so,  and  to  take 
the  profits  of  both  forms  of  publication.^ 

penalties  are  in  addition  to  the  pen-  I6ges  d'auteur,  concluira  k  recoun- 

alty  of  confiscalion  ;  and  they  pro-  aitre   que  tons   ces   droits  peuvent 

ceed  upon  the  presumption  of  dam-  ctrc   ramen^s    a   vm    droit    unique, 

age,  in  all  cases.  cel\ii  d'exploiter  seul    les   produits 

'  "  Un  examen  d6taill6  des  droits  v»^naux  que  I'ouvrafre  est  susceptible 

divers  dont  I'ensemble  constitue  le  de  procurer."     Eenouard,   tom.  2, 

domaine  priv6  confer6  par  les  prive-  p.  10. 


ABRIDGMENTS.  279 

There  are  very  few  works,  capable  of  being  use- 
fully abridged,  of  which  the  right  to  publish  an 
abridgment  is  not  a  valuable  part  of  the  copyright. 
If,  during  the  existence  of  the  copyright,  the  work  is 
abridged  by  a  stranger,  the  copyright  is  shorn  of  an 
incident,  the  loss  of  which  may  greatly  affect  its 
value  as  property.  In  this  sense,  therefore,  an 
abridgment,  without  leave  of  the  proprietor,  seems 
to  be  a  direct  usurpation  of  his  rights.  The  law  can 
never  presume  that  the  author  or  proprietor  will  not 
avail  himself  of  his  right  to  publish  his  own  abridg- 
ment. The  correct  presumption  is,  that  the  owner 
of  any  property  reserves  to  himself  every  right  inhe- 
rent in  it,  which  he  has  not  waived  or  ceded  in  some 
of  the  forms  known  to  the  law  ;  and  in  regard  to 
literary  property,  publication  alone  is  not  a  dedica- 
tion to  the  public  of  any  right  attached  or  incident 
to  the  property  itself. 

These  considerations  are  not  a  little  fortified  by 
the  argument  arising  from  the  fitness  of  leaving  the 
reputation  of  an  author  under  his  own  care,  or  under 
the  care  of  those  to  whom  he  sees  fit  to  entrust  it. 
An  unlimited  right  to  make  abridgments  deprives  the 
author,  while  living,  and  his  representatives  after  his 
decease,  of  their  just  control  over  his  reputation,  and 
consigns  his  works  to  reproduction  in  forms  to  which 
his  assent  is  not  asked  and  cannot  be  presumed,  for 
no  other  purpose  than  the  accommodation  of  the  ava- 
rice of  individuals  and  a  fancied  advantage  to  the 
public.     Lord  Mansfield  did  not  disdain  to  resort  to 


280  LAW    OF    COPYRIGHT. 

the  argument  of  fitness,  with  regard  to  the  reputation 
of  an  author,  in  support  of  his  right  over  his  own 
productions.  He  held  it  to  be  one  of  the  foundations 
of  literary  property.^ 

In  short,  the  publication  of  a  mere  and  professed 
abridgment,  is  an  invasion  of  the  rights  of  an  author, 
in  several  ways.  It  pledges  and  compromises  his 
reputation  and  responsibility,  to  the  same  extent  as 
the  republication  of  the  original  work.  It  makes 
use  of  his  work  to  raise  a  competition  which  must 
always  be  dangerous,  by  bringing  it  in  a  contracted 
form  within  the  reach  of  a  larger  number  of  purchas- 
ers ;  and  it  creates  a  direct  obstacle  to  the  exercise 
of  his  right  of  giving  the  work  to  the  public  himself, 
under  the  form  of  an  abridgment.^ 

I  cannot  but  think,  therefore,  that  the  result  to 
which  English  and  American  jurisprudence  ought  to 
come,  upon  this  question,  is,  that  an  abridgment,  in 
which  the  text,  the  plan,  the  ideas,  arguments,  nar- 
rative and  discussion  of  an  original  author  are  repro- 
duced, in  a  condensed  form,  is  a  violation  of  his  right 
of  property.^ 

This  position  seems  to  be  sustained  by  the  doc- 
trine of  a  recent  decision  in  England ;  although  some 
of  the  remarks  which  fell  from  the  court  apparently 
recognize  the  right  of  making  an  abridgment  of  some 


•  Millar  v.  Taylor,  4  Burr. .  '  Such  an  abridgment  falls  under 

See  his  observations,  cited  ante  p.  the    class  of   piracies    which    the 

84.  French  jurists  call  "  partially  iden- 

*  See   Renouard,   Droits   D'Au-  tical  " — Cuntrefa(jon  partielle  tden- 
teurs,  torn.  2,  p.  30  et  seq.  tique."     Renouard,  torn.  2,  p,  30. 


ABRIDGMENTS.  281 

kind,  in  the  case  of  a  book,  as  distinguishable  from  an 
abridgment  or  adaptation  o^  music.  When  examined, 
however,  the  reasoning  of  Lord  Lyndhm-st  on  this 
point,  taken  in  connection  with  the  point  decided  in 
the  cause,  will  be  found  to  give  a  different  view  of 
the  general  doctrine  of  abridgments,  from  that  which 
has  loosely  prevailed  in  England  for  above  a  century. 
The  defendant  in  this  case  had  published  portions 
of  an  opera,  (which  was  under  the  protection  of  a 
copyright,)  consisting  of  entire  airs,  and  other  por- 
tions consisting  of  whole  bars,  united  with  other  bars 
of  his  own  composition,  the  whole  being  arranged 
and  adapted  for  dancing,  in  the  forms  of  quadrilles 
and  waltzes,  and  being  described  on  the  title-page 
as  having  been  taken  from  the  opera  in  question.' 
The  defence  involved  most  of  the  doctrines  usually 
advanced  in  defence  of  abridgments.  It  was  con- 
tended that  the  object  of  the  defendant's  publication 

'  "  In  support  of  the  plaintiff's  ed  from,  an  air  of  the  opera  called 
case,  the  affidavit  of  Mr.  Rodwell,  '  Le  pauvre  Ivan.'  He  mentioned 
an  experienced  musician,  was  read,  the  several  bars  in  which  alterations 
With  reference  to  tiie  57ih  set  of  had  been  made,  and  stated  that  in 
quadrilles  published  by  the  defend-  one  instance  there  had  been  a  change 
ant,  he  deposed  that  the  second  qua-  of  key.  lie  made  similar  statements 
drille  was  so  completely  similar  to  with  respect  to  the  other  quadrilles 
an  air  of  the  opera  called  '  Gentille  and  the  waltzes  ;  observing-,  how- 
Muscovite,'  that  it  was  nearly  note  ever,  that  in  one  of  the  waltzes  there 
for  note  the  same,  even  to  the  ac-  were  sixteen  bars  which  were  not  in 
companiments  ;  that  the  melody  of  tlie  original  air.  lie  concluded  his 
the  fourth  quadrille  was  like  another  affidavit  by  saying,  that  alihough  in 
air  of  the  opera,  with  some  varia-  several  inst:inces  the  music  of  the 
tions  in  certain  bars,  which  he  spe-  quadrilles  in  question  was  slightly 
cified  ;  and  that  the  melody  of  the  varied  from  the  airs  of  the  operii,  yet 
fifth  quadrille  was  contained  in  cer-  such  variation  was  not  more  tlian  is 
tain  bars  of  the  overture,  which  he  always  found  to  be  necessary  wiien 
specified.  With  reference  to  the  58lh  the  music  of  an  opera  is  arranged  in 
set,  he  said  that  the  first  (luadrille  the  form  of  quadrilles.''  1  Younge 
was  founded  on,  though  much  vari-  &  Coll.  290. 
24* 


282  LA.W    OF    COPYRIGHT. 

was  different  from  that  of  the  plaintiff's;  that  the 
defendant  had  adapted  and  arranged  the  music  which 
he  had  taken  from  the  plaintiff's  opera,  for  dancing, 
to  which  it  w^as  not  adapted  in  the  original  work  ; 
that  such  arrangement  and  adaptation  involved  much 
labor,  musical  knowledge,  and  skill ;  that  the  de- 
fendant had  only  taken  certain  airs  and  melodies, 
whereas  the  plaintiff's  copyright  embraced  the  entire 
opera,  which  consists  not  merely  of  certain  airs  and 
melodies,  but  of  the  whole  score.^ 

The  court  applied  to  this  case  the  principle  which 
I  have  endeavored  to  keep  in  view  in  the  preceding 
observations.  The  air,  or  melody,  in  music,  is  the 
invention  of  the  author  ;  it  may  be  the  subject  of 
piracy,  because  in  taking  it,  the  taker  appropriates 
what  another,  and  not  he,  has  invented  ;  and  a  piracy 
is  committed  if  so  much  is  taken  as  constitutes  the 
meritorious  part  of  the  invention,  whether  it  be  the 
whole  invention  or  the  whole  of  a  distinct  part  of  the 
invention.  Upon  the  ground  that  the  defendant  had 
taken  consecutive  bars,  forming  the  entire  air  or 
melody,  an  injunction  was  granted.^ 

1  In  music,   the  form  called  the  entire  airs ;  and  that  in  one  of  his 

score  i3  when  the  work  contains  the  waltzes  he  has  introduced  seventeen 

whole  of  the  music  to  he  used  hy  all  bars   in   succession,  containing  the 

the  performers  collectively  with  their  whole  of  the  original  air,  although 

seA'eral  instruments.  he  adds  fifteen  other  bars  which  are 

*  D'Almaine  ?'.  Boosey,    1  Y.  &  not  to  be  found   in   it.     Now  it  is 

Coll.  288,  300,  in  tlie  Exchequer,  in  said  that  this  is  not  a  piracy,  first, 

Equity.     Lord  Lyndhurst,  L.  (3.  B.  because  the  whole  of  each   air  has 

said,   "It  is  admitted   that  the  de-  not  been  taken  ;    and,  secondly,  be- 

fendant  has  published  portions  of  the  cause  what  the  plaintiflf  purchased 

opera  containing  the  melodious  parts  was  the  entire  opera  ;  and  the  opera 

of  it ;  that  he   has   also  published  consists,  not  merely  of  certain  airs 


ABRIDGMENTS. 


283 


Lord  Lyntlluirst,  in  his  judgment  on  this  occasion, 
!id  not   refer  to   any  particular  works,  or   class  of 


and  melodies,  but  of  the  whole  score. 
But,  ill  the  liist  place,  piracy  may  be 
of  part  of  an  air  as  well  as  of  the 
whole  ;  and,  in  the  second  place, 
admittincr  that  the  opera  consists  of 
the  whole  score,  yet  if  the  plaintifTs 
were  entitled  to  the  whole,  a  fortiori 
they  were  entitled  to  publish  the 
melodies  which  form  a  part.  Ag'ain, 
it  is  said,  that  the  present  publica- 
tion is  adapted  for  dancing  only,  and 
that  some  degree  of  art  is  needed 
for  the  purpose  of  so  adapting  it  ; 
and  that  but  a  small  part  of  the  me- 
rit belongs  to  the  original  composer. 
That  is  a  nice  question.  It  is  a  nice 
question,  what  shall  be  deemed  such 
a  modification  of  an  original  work  as 
shall  absorb  the  merit  of  the  original 
in  the  new  composition.  No  doubt 
such  a  modification  may  be  allowed 
in  some  cases  ;  as  in  that  of  an 
abridgment  or  a  digest.  Such  pub- 
lications are  in  their  nature  original. 
Their  compiler  intends  to  make  of 
them  a  new  use  ;  not  that  wliich 
the  author  proposed  to  make.  Di- 
gests are  of  great  use  to  practical 
men,  though  not  so,  comparatively 
speaking,  to  students.  The  same 
may  be  said  of  an  abridgment  of  any 
study  ;  but  it  must  be  a  bona  fide 
abridgment,  because  if  it  contains 
many  chapters  of  the  original  work, 
or  such  as  made  that  work  salable, 
the  maker  of  the  abridgment  com- 
mits a  piracy.  Now  it  will  be  said 
that  one  author  may  treat  the  same 
subject  very  dlfTerently  from  another 
who  wrote  before  him.  That  ob- 
servation is  true  in  many  cases.  A 
man  may  write  upon  morals  in  a 
manner  quite  distinct  from  that  of 
others  who  preceded  iiim  ;  but  the 
subject  of  music  is  to  be  regarded 
upon  very  different  principles.  It  is 
the  air  or  melody  which  is  the  in- 


vention of  the  author,  and  which 
may  in  sucii  case  be  the  subj(;ct  of 
piracy  ;  and  you  commit  a  piracy  if, 
by  taking  not  a  single  bar,  but  seve- 
ral, you  incorporate  in  the  new  work 
that  in  which  the  whole  meritorious 
-  part  of  the  invention  consists.  I 
remember  in  a  case  of  copyrijjht,  at 
nisi  pnus,  a  question  arising  as  to 
how  many  bars  were  necessary  for 
the  constitution  of  a  subject  or 
phrase.  Sir  George  Smart,  who 
was  a  witness  in  the  case,  said,  that 
a  mere  bar  did  not  constitute  a 
phrase,  though  three  or  four  bars 
might  do  so.  Now  it  appears  to 
me  that  if  you  take  from  the  compo- 
sition of  an  author  all  those  bars 
consecutively  wliich  form  the  entire 
air  or  melody,  without  any  material 
alteration,  it  is  a  piracy  ;  though,  on 
the  other  hand,  you  might  take  them 
in  a  diflerent  order  or  broken  by  the 
intersection  of  others,  like  words,  in 
such  a  manner  as  should  not  be  a 
piracy.  It  must  depend  on  whether 
the  air  taken  is  substantially  the 
same  with  the  original.  Now  the 
most  unlettered  in  music  can  distin- 
guish one  song  from  another,  and 
the  mere  adaptation  of  the  air,  either 
by  changing  it  to  a  dance  or  by- 
transferring  it  from  one  instrument 
to  another,  does  not,  even  to  com- 
mon apprehensions,  alter  the  original 
subject.  The  ear  tells  you  that  it  is 
the  same.  The  original  air  requires 
the  aid  of  genius  for  its  construc- 
tion, but  a  mere  mechanic  in  music 
can  make  the  adaptation  or  accom- 
paniment. Substantially,  the  pira- 
cy is.  where  the  appropriated  music, 
though  adapted  to  a  diflerent  pur- 
pose from  that  of  the  original,  may 
still  be  recognized  by  the  ear.  The 
adding  variations  makes  no  difier- 
ence  in  the  principle." 


284  LAW    OF    COPYRIGHT. 

works,  presenting  instances  of  what  he  would  con- 
sider bona  fide  and  allowable  abridgments.  Whether 
he  had  reference,  as  would  seem,  to  such  works  as 
are  called  abridgments  in  the  law,^  or  to  a  more  nu- 
merous class,  in  which  some  one  existing  work  is 
reproduced  under  a  merely  condensed  form,  it  is 
clear,  that  the  principle  upon  which  he  decided  the 
cause  before  him  brings  the  doctrine  in  relation  to 
abridgments,  within  far  more  restricted  limits  than 
had  previously  been  assigned  to  it.  The  broad  doc- 
trine of  the  case  of  Gyles  v.  Wilcox,  and  the  still 
broader  doctrine  in  the  anonymous  case  in  LofFt's  Re- 
ports, would  have  justified  the  use  which  the  defendant 
made  of  the  plaintiff's  music,  but  for  the  single  quali- 
fication which  Lord  Lyndhurst  has  introduced.  He 
admits  the  general  right  to  use,  in  the  way  of  abridg- 
ment or  digest,  what  a  previous  writer  has  created  ; 
but  if  a  considerable  portion  of  that  which  consti- 
tutes per  se  the  invention  of  the  author,  is  taken, 
although  it  be  adapted  to  a  different  purpose,  a  pira- 
cy is  committed.  The  distinction  which  he  makes 
between  music  and  a  literary  composition  seems  to 
be  merely  that  an  air  or  melody  in  music  is  the  pure 


'  During  the  argument,  upon  the  ments,  it  is  a  piracy,  and  an  action 
case  of  Gyles  v.  Wilcox  being  cited  will  lie.  This  is  not  like  the  case  of 
by  the  defendant's  counsel,  in  sup-  an  abridgment  of  a  book.  The  pur- 
port of  the  doctrine  that  an  adapla-  pose  of  abridgments  is  very  distinct 
tion  of  an  original  work  to  new  pur-  from  that  of  the  works  from  which 
poses  is  not  a  piracy,  his  lordship  they  are  taken.  No  one  can  doubt 
made  the  following  remarks:  "I  that  Viner's  Abridgment  and  Co- 
think  that  if  the  original  air  is  pub-  myn's  Digest  are  original  works." 
lished,  though  with  adaptations  and  Ibid.  p.  296. 
harmonies,  or  for  different  instru- 


ABRIDGMENTS.  285 

invention  of  the  author,  and  there  is  no  ground  of  a 
common  subject  for  a  subsequent  composer  to  fall 
back  upon  ;  whereas,  in  literature,  although  the  par- 
ticular composition  is  original,  and  exclusively  the 
fruit  of  the  author's  mind,  the  sul)ject  is  common  to 
all  men,  and  may  admit  of  distinctions  between  the 
modes  of  treating  it,  whicJi  music  will  not  admit  of. 
In  literature,  therefore,  some  weight  is  to  be  given 
to  the  circumstance  that  the  purpose  to  which  a  sub- 
sequent writer  adapts  the  materials  which  he  finds 
in  an  original  author,  is  of  itself  new.  But,  accord- 
ing to  his  lordship,  even  in  literature,  if  material 
parts  of  what  constitutes  the  subject  of  an  author's 
property  be  taken,  although  with  a  new  adaptation, 
a  piracy  is  committed. 

If  this  be  so,  then  it  is  highly  important  to  inquire 
how  far  the  supposed  right  to  make  what  is  called  a 
bona  fide  abridgment  is  affected  by  the  doctrine  laid 
down  by  Mr,  Justice  Story,  that  an  original  author 
may  have  copyright  in  the  plan  of  his  book. 

In  the  case  in  which  this  doctrine  was  laid  down, 
the  plaintiff  was  the  author  of  an  arithmetic  con- 
structed upon  a  peculiar  plan.  He  claimed,  as  his 
own  invention,  the  plan  of  the  lessons,  which  con- 
sisted in  the  peculiar  arrangement  of  a  set  of  tables, 
with  a  gradation  of  examples  placed  in  a  particular 
manner,  to  teach  and  illustrate  the  combinations  of 
numbers  ;  and  this  plan  and  arrangement  he  alleged 
had  been  borrowed  and  imitated  by  the  defendant. 
The  defence  consisted  in  showing,  that  the  materials 


286 


LAW    OF    COPYRIGHT. 


and  some  of  the  modes  of  illustration  used  by  the 
plaintiff  could  be  found  in  other  books  ;  but  the  court 
held,  that  this  was  entirely  immaterial,  if  the  mate- 
rials and  modes  of  illustration  had  never  been  before 
united  in  one  combination,  in  the  manner  in  which 
the  plaintiff  had  united  and  connected  them ;  and 
declared,  that  no  person  had  a  right  to  borrow  the 
same  plan  and  arrangement  and  illustrations,  and 
servilely  to  copy  them  into  another  work.^     What- 


^  Emerson  v.  Davies,  3  Story's 
R.  768,  783.  This  subject  of  copy- 
right in  the  plan  or  method  of  a 
book  is  so  evanescent  and  metaphys- 
ical, that  it  is  nearly  impossible  to 
state  with  precision  the  abstract  doc- 
trine of  the  law  in  regard  to  it,  if 
indeed  the  law  upon  this  point  may 
yet  be  considered  as  developed  or 
settled.  Before  the  case  of  Emer- 
son V.  Uavies  was  in  print,  a  mas- 
ter's report  was  made,  in  the  same 
court,  in  another  case,  by  Charles 
Sumner,  Esq.  containing  the  follow- 
ing able  discussion  upon  the  ques- 
tion, whether  there  can  be  copy- 
right in  a  mere  plan,  independent 
of  materials  :  "  And  the  first  ques- 
tion that  arises  is  the  general  ques- 
tion, whether  the  plan,  combination, 
or  arrangement  of  a  book,  indepen- 
dent of  the  materials  and  language, 
is  susceptible  of  copyright.  Import- 
ant as  this  question  may  seem  to  be, 
it  does  not  appear  to  be  illustrated 
by  the  light  of  decided  cases.  The 
case  of  Hogg  v.  Kirby,  8  Yes.  215, 
has  been  thought  to  exclude  the 
conclusion  that  the  plan  of  a  book 
was  the  subject  of  copyright ;  but 
the  injunction  granted  in  this  case 
seems  not  to  have  been  founded  on 
copyright,  but  on  the  power  of  the 
court  to  restrain  a  party  from  carry- 
ing on  a  trade,  or  from  publishing  a 


work,  under  a  fraudulent  represen- 
tation that  such  trade  or  work  was 
that  of  the  plaintiff.  (See  Ibid,  note, 
Sumner's  edition.)  The  case  of 
Gary  v.  Faden,  5  Ves.  23,  recog- 
nizes a  copyright  in  a  road-book  ; 
but  it  was  in  the  plan  in  combina- 
tion with  the  materials.  The  case 
of  Gray  v-.  Russell,  1  Story,  says 
that  a  work  may  be  the  subject  of 
copyright,  although  the  materials 
which  compose  it  may  be  found  in 
the  works  of  other  authors  antece- 
dently printed,  provided  the  plan, 
the  arrangement,  and  the  combina- 
tion of  those  materials  be  original ; 
but  even  this  case  does  not  decide 
the  distinct  question  whether  apian, 
independent  of  the  materials  to  which 
it  is  applied,  and  on  which  it  is 
wrought,  is  a  subject  of  copyright. 
"  In  the  absence  of  any  govern- 
ing authority,  the  question  must  be 
regarded  in  tlie  light  of  principle. 
It  cannot  be  disguised  that  the  plan 
of  a  book  is  often  a  peculiar  part  of 
its  merits.  Some  authors  receive 
high  commendation  merely  for  the 
arrangement  of  their  subject,  de- 
scending even  to  such  particulars  as 
the  division  into  chapters  and  sec- 
tions ;  and  again  even  into  the  fur- 
ther division  of  paragraphs.  This  is 
applicable  to  historical  compositions 
as  well  as  to  scientific  and  philo- 


ABRIDGMENTS. 


287 


ever  may  be  the  case,  where  a  subsequent  writer, 
taking  only  the  plan  or  method  of  a  previous  author, 
uses  different  materials  and  illustrations,  and  adapts 
them  to  some  plan,  it  is  obvious  that  a  real  abridg- 
ment of  a  scientific  treatise,  for  example,  must  bor- 
row both  the  plan  and  method,  and  the  literary  mat- 
ter, in  the  same  combination  and  arrangement,  from 
the  original  work  ;  otherwise  it  is  not  an  abridg- 
ment, and  is  to  be  judged  upon  different  rules.     It 


sophic  productions.  Tt  would  be 
difficult,  however,  if  not  impossible, 
to  hold  a  subsequent  writer  amena- 
ble to  any  other  tribunal  than  that 
of  criticism,  who  should  write  an- 
other work  on  the  same  subject  in 
language  of  his  own,  but  cast  in  the 
same  chapters  and  sections.  In- 
deed, the  law  in  such  a  case  as  I 
am  now  supposing,  seems  to  be 
clearly  settled  in  the  matter  of  abridij- 
meiUs.  An  honest  abridgment  is 
admitted  to  be  no  violation  of  the 
copyright  of  the  work  aliridged ; 
but  the  very  idea  of  an  abridgment 
im[ilies  the  preservation  of  llie  ori- 
ginal plan,  arrangement  and  combi- 
nation, abridged,  or  reduced  to  a 
smaller  scale.  Indeed,  it  will  cease 
to  1)0  an  abridgment  exclusively,  if 
it  does  not  preserve  these  features; 
as  a  miniature  would  fail  to  l)e  a 
portrait,  if  the  original  proportions 
and  traits  of  the  countenance  are  not 
represented.  In  making  an  abridg- 
ment of  Mr.  Trving's  Life  of  Colum- 
bus, or  Mr.  Bancroft's  History  of  the 
United  States,  the  natural  and  inevi- 
table course  would  be  to  follow  their 
plan,  to  walk  by  their  light,  to  keep 
firm  hold  of  the  thread  which  ihey 
have  provided  in  their  narratives ; 
to  adopt  their  mode  of  developing 
the  subject ;  to  rely  upon  their  divi- 


sions ;  to  lean  upon  all  the  land- 
marks which  they  have  set  up ;  in 
short,  to  abridge  their  works,  by 
preserving,  as  far  as  possible,  the 
original  peculiarities  in  a  smaller 
compass.  Perhaps  no  class  of  works 
are  subjected  to  abridgments  more 
than  dictionaries,  nor  has  any  per- 
son questioned  the  lawfulness  of 
such  abridgments  ;  but  they  cannot 
fail  to  preserve  the  plan,  arrange- 
ment, and  combination  of  the  origi- 
nal dictionary.  Take,  for  instance, 
the  recent  extensive  and  most  im- 
portant dictionary  of  the  English 
languaofe,  by  Richardson,  which  is 
on  a  plan  entirely  new,  I  believe, 
as  applied  to  the  English  language. 
Can  it  be  doubted  that  an  abridgment 
of  this  work  might  be  made,  re- 
ducing its  two  quartos  to  a  sincrle 
octavo,  in  which  its  peculiar  plan 
should  be  preserved?  Nor  does  it 
seem  to  me  that  it  can  be  doubted 
that  another  dictionary,  of  another 
language,  or  even  of  the  English 
language,  may  be  made  on  Richard- 
son's plan,  which  shall  not  be  an 
abridgment,  but  shall  be  founded 
on  fresh  labor  and  fresh  materials." 
See  Law  Reporter,  (Boston)  vol.  x. 
pp.  15;j-15G,  note.  Webb  and  Gray 
?•.  Powers  and  Baglev,  S.  C  1  Wood- 
bury's R. 


288  LAW    OF    COPYRIGHT. 

seems  to  me,  that  when  an  author  takes  a  scien- 
tific subject,  however  common  it  may  be  to  all  other 
writers,  and  upon  a  peculiar  plan  and  with  a  distinct 
classification,  produces  a  treatise  novel  in  its  method 
of  teaching  and  exhibiting  the  subject,  he  has  a  right 
of  property  in  what  may  be  called,  (by  a  not  happy 
illustration,)  the  skeleton  of  his  book,  which  is  ne- 
cessarily invaded  by  a  condensed  reproduction  of 
the  same  treatise.  This  is  what  takes  place  in  the 
making  of  a  real  abridgment. 

To  these  views  should  be  added  the  support  derived 
from  the  laws  of  several  of  the  continental  nations. 

In  France,  the  question  seems  to  be  one  of  con- 
struction ;  but  there  can  be  little  doubt  that  the  text 
of  the  law  of  1793,  which  secures  to  authors  the  ex- 
clusive right  of  selling  their  works,  and  of  ceding  the 
proprietorship,  in  whole  or  in  part,  will  author- 
ize the  conclusion  that  an  abridgment  is  an  injury  to 
the  proprietorship.^  This  opinion  is  maintained  by 
M.  Renouard,  whose  work  on  the  Rights  of  Authors 
I  have  so  often  cited.^ 

In  Belgium,  abridgments  are  expressly  included, 
by  the  text  of  the  law,  among  the  rights  of  authors, 
which  are  forbidden  to  be  violated.^ 


'  "  Les  auteurs  en  tout  genre,  les  priet6  en  tout  ct  en  partie."  Dccret 

compositeurs  de   musiquc,  les  pein-  du  1!)  Juillel,  1793,  art.  1. 

tres  et  dessinateurs  qui  feront  nra-  *  Tom.  ii.  p.  29-34. 

ver  des  tableaux ou  dessins,  joiiiroul  ^  "  Le  droit  de  copie  ou  le  droit 

diirant  leur  vie  cntiere  du  droit  ex-  do  copier  au  moyen  dc  I'impression 

clusif  de  vendre,  fair  vendre,  distri-  est,  pour  ce  qui  coucerne  les  ouv- 

buerleursouvrages  dans  If!  territrire  rages   originaux,    soit    productions 

de  la  r<^ipublique  et  d'en  cedcr  la  pro-  litt6raires  ou  productions  des  arts, 


ABRIDGMENTS.  289 

The  Prussian  law,  (the  most  elaborate  code  on  the 
subject  of  literary  property  in  the  world,)  besides 
declaring  that  the  exclusive  rights  of  an  author  in- 
clude the  right  of  multiplying  his  work,  already 
published,  "  in  whole  or  in  part,"  enumerates  what 
shall  hot  be  considered  infringements  of  this  right, 
and  does  not  place  abridgments  among  the  excep- 
tions.^ It  seems  to  be  highly  probable,  therefore, 
that  in  Prussia,  the  license  of  abridging  another  man's 
work  is  wholly  unknown. 

In  Russia  there  are  similar  enactments  to  those 
of  the  Prussian  code,  and  among  the  enumerated 
offences,  it  is  declared  that  an  edition  of  a  dictionary 
in  which  the  greater  part  of  the  definitions,  explana- 
tions and  examples  is  actually  copied  from  a  work  of 


sonmis   au  droit  exclnsivement  re-  de  I'auteur  ou  de  ses  ayant-droit : 

serve    ^  leurs  auteurs   et    a  leurs  a.  De  manuscrits  de  tout  genre  ;  b. 

ayant-cause,  de   rendre  pulilics   par  De  sermons  prononc^'s  ou  de  cours 

la  voie  de   1'  impression,  de  vendre,  profess^'s  oralcment,  et  Merits  par  un 

ou  de  faire  vendie  ces  onvrag-es,  en  des  auditeurs,  soit  que  la  piiblica- 

tout  ou  en  parlie,  par  abrege  ou  sur  tion  ait  eu  lieu  sous  le  voritalde  nom 

une  echelle  rediiite.  en  une  ou  plu-  de  Tauteur,  soit  qu'elle  ait  ite  faite 

sieurs  langufs,  orn^s  ou  non  orn<^'s  sans   son  nom.     Cette   approbation 

de  gravures  et  autres  acnessoires  de  est  meme  n^cessaire  au  possesseur 

I'art."    Law  of  the  25th  Jan.  1817,  legal  d'un  manuscrit  ou  de  sa  copie 

cited  Renouard,  torn.  i.  p.  249.  (frt/re  a)  ou    de  seimons  ou  cours 

'  "  M-  Le  droit  de  lairc  imprimcr  Merits  {Icltre  h).     ^4.  Ne  soni  point 

de  nouveau  ou  de  faire  muliiplicr  par  consid^rees  comme  contrefa^ons  :  1. 

un   proce  le   ni^canique    quelconque  La  citation  litterale  de  pas-ages  iso- 

tout  on  parlie  d'un  ecrit  di'ija  public,  les  d'un  ouvrage  deja  imprini*!; ,  2. 

appartient  exclusivt  mcnt  i  son  au-  La  rtproduction  d'articles  isol«^s,  de 

teur,  ou  h.  ceu.xqni  tireiit  leurs  droits  poe.sies.  etc  , dans  les  ouvraL'es  ayant 

de  Ini.     ^  2     'I'oute    multiplication  pour  objei   la  critique  ou  I'histoire 

nouvelle,  si  elle  a  lieu  sans  lappro-  litteraire,   ou    dans   des    rccueils  i\ 

hation    de  Tayant-droit  exclnsif,  se  I'usage  dos  ^colcs  ;  3.  La  publica- 

nomme  conlrefi^on  et  est  d(*fendne.  tion  de  traductions  d'ouvrases  d«^jk 

^  3.  Est  r^put^f  enntrcfa^on,  et  est,  imprimes."     Law  of  the  Uth  June, 

par  consequent,  d-ji^alcmcni  defendne  1837.     Renouard,  toni.  i.  \i.  'jriO. 
rimpression  faite  sans  Tapprobation 
35 


290 


LAW    OF    COPYRIGHT. 


the  same  kind,  enjoying  the  protection  of  copyright, 
shall  be  deemed  a  piracy.^ 

A  translation  from  a  work  not  under  the  protec- 
tion of  copyright  in  the  country  where  the  transla- 
tion is  made,  of  course  infringes  no  one's  rights  ; 
but  it  is  a  very  interesting  and  important  question, 
whether  a  translation  be  not  an  infringement,  where 
the  orignal  is  protected. 


'  "  Est  6galement  r6put6  contrc- 
facteur :  1°  quiconque,  sous  le  titre 
deseconde  ou  troisitiine,  etc.  edition, 
impriiiie  un  ouvrajre  d6j^  public, 
sans  ol)server  les  conditions  ci-dcssus 
indi(juecs;  2"  quiconque,  ayant  re- 
impriiue  a  I'etranger  un  ouvraa^e 
put)li6  en  Russie,  ou  avec  la  permis- 
sion de  la  censure  russe,  meme  en  y 
ajoutant  une  traduction,  vendrait  en 
Russie  des  exemplaires  de  cette  r6- 
impression  sans  le  consentemcMit  par 
6crit  de  T^diteur  l^jriiime  ;  3"  qui- 
conque, sans  le  consentenient  de 
I'auteur,  imprinic  un  discours  ou 
toute  autre  composition  prononc6e 
ou  lue  en  public ;  4 "  Ic  journaliste 
qui,  j\  litre  d'analyse,  ou  sous  tout 
autre  pr6texte,  reimprime  constam- 
ment  et  en  entier  de  petits  articles 
pris  dans  d'autrcs  publications,  lors 
m6me  que  ces  articles  ne  formcrai- 
ent  pas  une  feuille  d'impression  ; 
mais  une  r6impression  accidentelle 
d'un  article  d6tach6  ayant  moius 
d'une  feuille  d'impression,  comme 
aussi  la  reimpression  de  nouvelles 
politiques,  de  litt6raiure,  de  sciences 
ou  d'arts,  avec  indication  des  sources, 
n'est  pas  interditc.  L'insertion, 
dans  les  chrestomaties  et  autrcs  liv- 
res  scolaires,  d'articles  ou  extraits 
quelconques  d'autres  auteurs,  n'est 
pas  r^putfee  contrefa<jon,  encore  que 


ces  emprunts,  r6partis  dans  les  di- 
verses  parties  du  livre,  formassent 
un  contenu  de  plus  d'une  feuille 
d'impression.  Les  citations  ne  sont 
pas  reputees  contrefatjon,  pourvu  : 
1"  qu'ollcs  ne  d6passcnt  pas  le  tiers 
du  livre  dont  ellcs  sont  tirties,  si  se 
livre  est  de  plus  d'une  feuille  d'im- 
pression ;  2"  que  le  propre  texte  de 
I'auteur  d6passe  deux  fois  les  cita- 
tions prisr's  par  lui  dans  un  autre 
ouvrage.  La  traduction  d'un  ouv- 
rape  dtja  traduit  n'est  envisag6e 
conunc  contrefayon  que  lorsqu'on  y 
a  copie  mot  h  mot  et  de  suite  deux 
tiers  d'une  traduction  jouissant  en- 
core du  droit  de  propri6l6  exclusive. 
Est  aussi  rtputee  contrefa^on  I'edi- 
tion  d'un  dictionnairc  dans  lequel  la 
majeure  partie  des  definitions,  ex- 
plications ct  exemplcs,  est  textuelle- 
mciit  copiee  d'un  autre  ouvrage  du 
m6me  genre,  jouissant  encore  du 
droit  de  propri6t6  exclusive.  II  en 
est  do  meme  de  la  puldication  des 
cartes  g6ographiqucs,  des  tableaux 
historiques ;  des  tables  de  loga- 
rithmcs,  des  indicaleurs  et  autres 
ouvrages  de  ce  genre,  consistant  en 
chifTres  ou  noms  proprcs,  lorsqu'ils 
ont  6t6  copies  mot  h.  mot,  ou  avec 
des  cbangemens  insignifians,  sur 
d'autres  ouvrages."  1  Renouard, 
p.  287,  288. 


TRANSLATIONS.  291 

The  principles  upon  which  translations  have  been 
held  to  be  original  works,  entitled  to  the  protec- 
tion of  the  law,  have  been  referred  to  in  a  previous 
part  of  this  treatise.^  But  the  admitted  right  to 
make  use  of  the  work  of  a  foreign  author,  who  is  not 
in  a  situation  to  claim  the  benefit  of  the  law  of  copy- 
right, has  no  tendenc}^  to  establish  such  a  right  in 
cases  where  the  original  work  is  actually  under  pro- 
tection, as  would  be  the  case  where  the  original  and 
the  translation  are  both  first  published  in  the  same 
country.  The  cases  which  have  treated  translations, 
made  from  foreign  works,  as  original,  and  therefore 
fit  subjects  of  copyright,  have  but  little  bearing  upon 
the  question  now  under  consideration  ;  they  merely 
tend  to  show  that  the  act  of  translation,  by  giving 
a  new  dress  to  the  work,  incorporates  with  it  the 
pains  and  labor  and  learning  of  the  translator.'^ 
This  being  conceded,  it  still  remains  a  question, 
admitting  of  much  doubt,  whether  a  work,  under 
the  protection  of  the  statute,  if  printed  in  a  foreign 
or  a  dead  language,  can  be  thus  taken  as  the  subject 
of  a  translator's  labor,  so  that  by  merely  incorpo- 
rating with  the  matter  of  the  book  the  fruit  of  his 
own  industry,  he  can  entirely  absorb  the  rights  of 
the  original  author. 

Upon  principle,  I  can  have  no  duubt  that  this  can- 
not be  done.  The  arguments  derived  from  the  fact 
that  a  translation  brings  the  work  within  the  reach 

»  Ante,  p.  18G,  et  seq.  443,  n.     Wyatt  r.  Barnard,  3  V.  & 

'  Burnett  v.  Chetwood,  2  Meriv.     B.  77. 


292  LAW    OF    COPYRIGHT. 

of  a  greater  number  of  readers,  and  from  the  incor- 
poration of  new  labor  with  old  material,  or  the  cloth- 
ing of  the  old  sentiments  and  ideas  in  a  new  dress, 
are  the  principal  suggestions  that  can  be  made  in 
favor  of  such  a  license.  Both  of  them,  however, 
imply  that  the  part}-  is  dealing  with  a  book  that  has 
become  publici  juris,  or  as  the  French  jurists  express 
it,  has  entered  into  the  public  domain.  If  the  book 
be  under  the  private  dominion  of  the  author,  or  his 
assigns,  the  fact  that  a  republication  brings  it  within 
the  reach  of  a  greater  number  of  readers,  does  not 
palliate  an  infringement  of  the  copyright.  If  a  re- 
publication could  have  this  effect  in  any  case,  the 
argument  would  be  as  good,  in  the  case  of  every 
piratical  and  literal  republication  on  a  cheaper  paper 
than  that  of  the  original,  as  it  is  in  the  case  of  a  re- 
production under  the  new  dress  of  a  vernacular 
tongue.  The  law  does  not  look  to  see  what  class  of 
readers,  or  what  numbers  of  readers  are  addressed  by 
a  piratical  publication.  It  inquires  whether  the  com- 
plaining author  was  exclusively  entitled  to  take  the 
profits  of  the  book  which  he  has  published,  and  if  it 
finds  that  such  a  right  was  well  vested  in  him,  it 
protects  him  under  every  form  in  which  that  literary 
composition  can  be  reproduced. 

Does  then  the  mere  act  of  giving  to  a  literary  com- 
position the  new  dress  of  another  language,  add  to 
the  case  an  element,  which  ought  to  take  it  out  of 
the  rule  by  which  reproduction  in  other  forms  is  pro- 
hibited ?    The  property  of  the  original  author  em- 


TRANSLATIONS.  293 

braces  something  more  than  the  words  in  which  his 
sentiments  are  conveyed.  It  includes  the  ideas  and 
sentiments  themselves,  the  plan  of  the  work,  and  the 
mode  of  treating  and  exhibiting  the  subject.  In  such 
cases,  his  right  may  be  invaded,  in  whatever  form 
his  own  property  may  be  reproduced.  The  new 
language  in  which  his  composition  is  clothed  by 
translation  affords  only  a  different  medium  of  com- 
municating that  in  which  he  has  an  exclusive  pro- 
perty ;  and  to  attribute  to  such  a  new  medium  the 
effect  of  entire  originality,  is  to  declare  that  a  change 
of  dress  alone  annihilates  the  most  important  subject 
of  his  right  of  property.  It  reduces  his  right  to  the 
narrow  limits  of  an  exclusive  privilege  of  publishing 
in  that  idiom  alone  in  which  he  first  publishes.  But 
we  do  not  find  that  his  privilege  is  thus  circumscrib- 
ed ;  because  a  mere  change  of  phraseology  is  not  held 
to  justify  the  adoption  of  matter  that  is  under  the 
protection  of  the  law.^ 

Literary  property  may  also  be  invaded  by  the  pub- 
lication of  a  work  purporting,  in  its  title  or  other- 

'  In  France,  this  is  an  open  ques-  in  the  Latin  language  by  a  British 

tion,  as  I  conceive  it  to  be  both  in  subject,  is  a  work  to  be  protected. 

England  aiui  America.     ]\I.  Pardes-  I  have  shown  (ante,  p.  18'J,  n.)  that 

sus  denies  tlie  right  of  translation  of  this  case  was  disposed  of  on  other 

works  piibhshed  in  Franco.      Cours  grounds.     The  British  international 

de    Droit    Commercial,   2d    Partie,  cop3'right  act  provides  that  foreign 

litre  1,  Nos.  161,  167.      M.  Renou-  books  which  may  by  treaty  become 

ard  supports  it,  torn.  ii.  pp.  36-41.  privileged  in  England,  shall  still  be 

In   England  the   question    has    not  subject  to  being  translated.    In  Prus- 

beendirectly  adjudged,  although  Mr.  sia  a  translation  cannot  be  made  of 

Godson  (page   'Ml)   cites  the   case  a  native  work,  which  the  author  has 

of  Burnett  v.  Chetwood,  2  Meriv.  published  in  a  dead  language.    Law 

441,  n.  in  support  of  the  position,  of  1837.     Renouard,  torn.  i.  p.  269. 
that  a  translation  of  a  book,  written 

25* 


294  LAW    OF    COPYRIGHT. 

wise,  to  be  what  it  is  not.  If  a  party  puts  forth  a 
work  in  fact  represented  to  the  public  to  be  the  work 
of  another,  which  is  actually  under  the  protection  of 
copyright,  so  as  to  intercept  the  profits  which  would 
otherwise  accrue  to  the  proprietor  of  the  latter,  such 
a  proprietor  may  obtain  the  aid  of  a  court  of  equity 
to  prevent  the  injury  thus  occasioned  or  threatened.^ 
This  offence  has  not  been  treated  strictly  as  a  piracy, 
where  no  part  of  the  body  of  the  genuine  work  has 
been  copied  or  imitated.  But  he  who  carries  his 
work  into  the  world  as  that  of  another  person,  may 
do  the  same  injury  as  if  he  actually  published 
that  of  another  person  ;  and  if  the  consequences  are 
or  are  likely  to  be  the  same,  the  remedy  ought  to  be 
coextensive  with  the  injury.^ 

But,  in  England,  the  jurisdiction  exercised  by 
courts  of  equity,  to  prevent  the  use  of  the  title  of  an 
established  work,  is  exerted  in  the  same  manner  and 
upon  the  same  principles  as  in  the  cases  of  the  good- 
will of  trades.^  The  doctrine  that  the  title  of  a  book 
or  periodical  is  part  of  the  work,  capable  of  being 
infringed  like  the  body  of  the  publication,  and  that 
the  infringement  is  to  be  redressed  as  a  piracy,  has 
not  been  expressly   affirmed."*     The  result  that  is 

»  Hogg  V.  Kirby,  8  Yes.  215.  of  Hogg  w.  Kirby.  See  also  Keene 
«  Ibid.  V.  Harris,  cited  in  Crutwell  v.  Lye, 
'  The  ground  of  the  decision,  in  where  the  trustee  of  a  newspaper 
Hogg  V.  Kirby,  was,  that  tlie  de-  published  another  newspaper  under 
fendant  represented  his  publication  the  same  title,  and  it  was  held  a 
to  be  a  continuation  of  that  of  the  breach  of  trust.  See  also  ante,  p. 
plaintiff.  See  Crutwell  v.  Lye,  17  1G6,  and  the  authorities  there  cited. 
Ves.  335,  342,  where  Lord  Eldon  *  Spottiswood  v.  Clarke,  2  Phil- 
refers  to  and  c(,mments  on  the  case  lips's  Ch.  R.  154,  presents  a  case 


USURPATION    OF    TITLE,  295 

reached  through  the  branch  of  equity  jurisdiction  re- 
lating to  the  good-will  of  a  trade  or  employment,  is 
pernaps,  in  most  cases,  as  beneficial  to  the  interests 
of  literature  as  any  other  form  of  redress.  But  there 
may  be  cases  in  which  this  branch  of  the  jurisdiction 
would  not  give  an  adequate  remedy.  Perhaps  it 
would  be  necessary,  in  order  to  make  a  case  for  in- 
terference on  the  ground  of  a  violated  trade,  to  show 
that  the  work  brought  in  periodical  returns  ;  or  that 
the  conduct  of  the  defendant  interfered  with  an  es- 
tablished course  of  profits,  regularly  flowing  from  the 
publication  of  the  plaintiff.'  But  in  the  case  of  a 
newly  published  work,  the  profits  are  not  ascertain- 
ed, and  no  regularity  or  established  course  of  profits 
can  be  proved  ;  at  the  same  time  it  is  perfectly  clear 
that  the  proprietor  of  the  work  is  by  law  exclusively 
entitled  to  the  profits,  whatever  they  are  likely  to 
be,  and  on  this  ground  a  distinct  branch  of  equity 
jurisdiction  makes  his  legal  right  effectual.  It  is 
therefore  necessary  to  inquire,  whether  the  title  of  a 
book  should  not,  as  part  of  the  work,  be  deemed  to 
be  under  the  protection  of  the  copyright,  so  as  to 
make  the  copying  or  imitating  it  a  piracy,  to  be  re- 
dressed as  such. 

The  solution  of  this  question  will  probably  be 
found  to  depend  upon  the  rules  and  principles  which 
determine   the   question   of  infringement,    in    cases 

of  colorable  imitation  of  the  title  of  be  the  same  as  that  printed  and  sold 

an  Almanac.     Tiie  injunction  was  by  the  plaintitF. 
sought  for  on  the  ground   that  de-         '  See  2  Story's  Eq.  Jurisp.  iji 'J51. 
fendant  represented   his  almanac  to 


296  LAW    OF    COPYRIGHT. 

where  any  distinct  portion  of  a  work  under  the  pro- 
tection of  a  copyright  is  improperly  used.  It  must 
depend  on  the  existence  of  an  exclusive  propert'^^  in 
the  part  thus  taken,  and  on  the  fact  of  injury  to  the 
exclusive  right  of  the  party  complaining.  Thus,  if 
the  titles  of  two  books  are  identically  the  same,  and 
the  books  are  dissimilar  in  all  other  respects,  the 
question  will  arise,  whether  the  title  of  the  earlier 
publication  is  descriptive  of  its  individuality,  and 
is  of  a  character  appropriate  to  the  setting  forth 
that  book  to  the  public.  If  it  be  such  a  title,  and  if 
the  effect  of  its  adoption  be  to  mislead  the  public  in 
their  purchases,  then  both  the  elements  of  a  piracy 
concur,  and  there  seems  to  be  no  reason  why  it 
should  not  be  regarded  as  an  infringement  of  the 
copyright.  But  if  the  title  be  merely  a  generic  de- 
scription of  the  subject;  or  a  description  consecrated 
by  usage  to  works  of  the  particular  class  to  which 
the  book  belongs,  and  there  is  nothing  to  cause  a 
confusion  between  the  two  works,  there  is  no  reason 
for  judicial  interference,  either  on  the  ground  of 
copyright  or  of  good-will  in  trade. ^ 


'  Instances  of   the   second   class  of  the  Conqueror  Hernando  Cortes," 

■would    be,   "  A    Dictionary   of  the  are  each  descriptive  of  the  particu- 

Ensflish    Language;"   "A  History  lar  work,  peculiar  and  appropriate  to 

of  Kn<iland  ;"  "  A  Treatise  on  the  its  individuality  ;  and  if  by  adopting 

Law  of  Patents;"  "Biogiaphie  Uni-  such  a  title  an  injury  is  caused  to 

verselle,"  &c.  &c.     But  such  titles  the  work   to  which  it  belongs,  the 

as  "  The  Dictionary  of  the  French  proprietor   of  that  work   should  be 

Academy,"    —    "  Dictionnaire    de  entiiled  to  redress,  under  the  prin- 

I'Acadeinie    Francaise  ;"   "  History  ciples  of  a  consistent   and  effectual 

of  the  Conquest  of  Mexico,  with  a  jurisprudence.     See  Spottiswood  u. 

preliminary    view   of    the    Ancient  Clarke,  2  Phillips  Ch.  R.  154. 
Mexican  Civilization,  and  the  Life 


USURPATION     OF    TITLE.  297 

There  may,  indeed,  be  a  third  class  of  cases, 
where  the  title  is  not  descriptive  of  an  individual 
publication,  and  is  ab  ante  open  to  any  one  to  adopt, 
but  by  long  use  and  possession  has  come  to  be  the 
received  designation  of  ;i  particular  work.  In  such 
cases,  the  title  has  become  appropriated  to  the  party 
who  has  thus  used  it,  and  whose  profits  may  be  in- 
tercepted by  its  adoption  by  another.  These  cases, 
however,  can  rarely  arise  in  any  other  than  the  class 
of  periodical  publications;  and  in  the  actual  ^r-i  e 
of  our  jurisprudence,  perhaps  redress  for  such  in- 
juries must  be  sought  in  that  jurisdiction  which  pro- 
tects trades,  by  bringing  the  case  within  the  princi- 
ples regulating  that  branch  of  the  law.^ 

If  a  periodical  work,  that  has  long  worn  a  parti- 
cular title,  changes  it  for  another,  the  adoption  of 
the  old  title  by  a  new  periodical,  after  the  lapse  of  a 
reasonable  time,  would  ordinarily  not  be  such  an  in- 
terference as  the  courts  of  ,ustice  should  notice.^ 

This  subject  of  titles  has  been  much  discussed  in 
France,  where  an  ample  protection  vindicates  the 
just  rights  of  literary  property.  The  remedy  is 
sometimes  administered  in  damages  for  an  unlawful 
interception   of  profits,   as  in  cases  of  trade  ;    and 

'  To    cases   of    tins   description  *  The  Cour    RoyaJe  at  Paris   in 

belong   thai  of  "  The  ]5alh  Chron-  1831  sanctioned  the  publication  of  i 

icle,"    (cited  under   the    name    of  journal  under  the  title  of  Gazette  de 

Keene  t).  Harris,  8  Ves.  215.)   "  Le  Sanfe,   wiiich  another   journal    had 

Constitulionnel,"    which   came   be-  formerly  worn,    but  which    it    had 

fore   the  Tribunal  of  Commerce  at  for  seven  months  abandoned  lor  the 

Paris,  in  1S3-2  ;   (Renouard,  torn.  2,  title  Gazette  Mcdicale  dc  Paris.  Re- 

p.  125,)  and  Hoiij  v.  Kirby,  8  Ves.  nouard,  tom.  2,  p.  128. 
215,  the  case  of  a  magazine. 


298  LAAV  OF  COPYEIGHT. 

sometimes  under  the  law  of  copyright,  as  for  a  pirati- 
cal infringement,  according  to  the  circumstances.^ 
The  rules  established  by  the  adjudged  cases  are  the 
following.  1.  That  a  title  intended  to  mark  the  in- 
dividuality of  a  work,  and  to  set  it  forth  to  the  pub- 
lic, cannot  be  used,  even  for  a  work  of  entirely  dif- 
ferent contents  ;  and  that  it  is  a  usurpation,  when 
such  a  title  is  taken,  though  it  may  be  used  with 
slight  modifications,  if  there  is  any  chance  of  confu- 
sion, so  that  the  one  work  is  likely  to  be  mistaken 
for  the  other.  2.  That  a  title  which  does  not  mark 
the  individuality  of  the  work,  and  the  use  of  which 
by  another  book  is  not  likely  to  do  injury  to  the  work 
which  had  first  adopted  it,  does  not  give  a  right  of 
exclusive  possession,  3.  That  the  title  of  a  journal 
belongs  to  it,  as  long  as  it  is  worn,  through  the  whole 
period  of  its  existence  ;  and  the  longer  this  period 


'■  In  a  case  concerning  the  Die-  ought  not  to  be  visited  with  the  pe- 

tionary  of  the  French  Academy —  nalties  enacted  for  that  ofience.  The 

Dictionnaire  deVAcademie  Francaise  court   adopted   this   reasoning,  and 

—  M.     Merlin    argued   before    the  held   that  the  object  of  the    law  of 

Court  of  Cassation,  that  the  title  of  1793    (the   copyright  law)  was   to 

the  Dictionary  of  the  French  Acad-  secure  to  authors,  their  heirs  and 

emy  is  an  essential  part  of  the  die-  assigns,  the  exclusive  right  to  print, 

tionary  itself ;  that  to  usurp  it  is  to  sell  and  distribute  their  own  works, 

usurp  a  part  of  the  work  ;  that  the  and   consequently   to    prohibit   the 

law  treats  the  usurpation  of  part  of  printing   and   distribution   of  every 

a  literary  work  as  an  infringement  work,  which,  by  an  invasion,  more 

{conlre  fa(;on,)  and  punishes  it  in  a  or   less   extensive,    could  interfere 

peculiar  manner  :  —  that  if,   under  with  this  exclusive  right ;  and  that 

the   title   of   Theatre  de   Racine,  a  the  adoption  of  such  a  title  as  that 

'printer  were  to  publish  the  plays  of  in  question  was  an  offence  against 

Bradon,  and  if  Racine  wore  living,  the    law   of   1793,    inasmuch   as  it 

and  in  the  enjoyment  of  all  his  rights  tended  directly  to  injure  the  propri- 

of  property,  it  would  be  impossible  elors  of  the   genuine  work.     Mer- 

to  say  that  the  printer  had  not  com-  lin,  Qnestions  de  Droit,    Propriete 

mitted  a  piracy,  {vol  litteraire)  and  Litteraire,  ^  1. 


USURPATION    OF    AN    AUTHOR's    NAME.  299 

has  existed,  the  more  importance  is  acquired  to  the 
title,  and  the  more  it  becomes  a  distinguishing  part 
of  the  property.^ 

The  use  of  the  name  alone  of  another  person  is  a 
wrong  that  will  be  prevented  by  the  interference  of 
a  court  of  equity,  but  not  as  an  infringement  of  copy- 
right. Lord  Eldon  granted  an  injunction  to  restrain 
the  publication  of  certain  poems  under  the  name  of 
Lord  Byron,  who  was  abroad,  upon  an  aflidavit  of 
his  agent  making  it  highly  probable  that  it  was  not  a 
genuine  work,  and  on  the  refusal  of  the  defendant  to 
swear  that  in  his  belief  Lord  Byron  Avas  the   author.- 

The  usurpation  of  an  author's  name  is  morally  a 
more  reprehensible  proceeding  than  the  usurpation 
of  a  title.  But  if  it  is  not  accompanied  by  the  repro- 
duction of  anything  which  the  imputed  author  has 
actually  written,  it  cannot  be  treated  as  a  piracy.^ 
But  if  the  adoption  of  matter  really  written  by  an  au- 
thor accompanies  the  fraudulent  use  of  his  name,  the 
whole  publication  ought  to  be  restrained  at  once  as  a 
piracy,  aggravated  by  the  fraud  attempted  upon  the 
title-page.''     It   has  previously  been   stated,  that   a 

'  Renouard,  torn   2,1).  US- 128.  *  A  l)oolvseller  in  Paris,  in  18-28, 

Merlin,  Questions  do  Droit,  Propri-  publislunl  a  spurious  edition   of  the 

ite  Liltcrmre,    ^   1.     Hei)ert()ire  de  works  of  ('ardinal  Maury,  in  whiuh 

Jurisprudence,  v.  Lirrn.  he   had  copied  the  notes  of  his  ne- 

*  Lord  Jiyron  v.  Johnson,  2  Me-  plievv,  (who  had  edited  the  peiiuine 
riv.  2i).  edition,)  under  the  f(dlo\ving   title  : 

*  This  species  of  fraud  has  fre-  J^dure/lc  tditton  pithliec  sur  hs  man- 
quenily  heeti  checked  in  France,  but  j/scrits  autO'^raphrs  dc  Vauleiir,  par 
as  a  fraud  of  a  special  nature,  and  Lot'is  Siffrein  .Mai'ry  son  iifviu. 
not  as  the  olTence  denoininaied  con-  The  fraud  of  hoMino  out  the  name 
trrfacon,  unless  there  has  a'so  been  of  M.  Maury,  as  tlie  editor  of  this 
a  copyin?  of  grenuine  matier.  Re-  edition,  was  justly  considered  as  an 
nouard,  torn.  ii.  pp.  128-130.  element  in  tlie  infringement  of  co- 


300  LAW    OF    COPYRIGHT. 

work  which  thus  usurps  the  name  of  a  person  who  is 
not  the  author,  cannot  enjoy  the  protection  of  a  co- 
pyright.^ 

As  to  what  constitutes  infringement,  in  the  case 
of  dramatic  and  musical  compositions,  it  has  been 
well  settled  that  representation  of  a  published  play 
is  not  a  violation  of  the  copyright  in  the  book  itself.^ 
But  it  seems  that  where  a  play  is  unpublished,  and 
the  copyright  has-been  assigned  by  the  author  to  a 
particular  theatre,  an  injunction  will  be  granted 
against  its  performance  at  any  other  theatre.^  This 
implies  that  there  is  a  common  law  right  of  perform- 
ance, in  the  case  of  an  unpublished  play,  capable  of 
being  assigned  by  the  author,  and  existing  previously 
to  the  statute  of  3  Wm.  IV.  c.  15  ;  and  such  a  right 
is  recognized  in  the  first  section  of  that  act,  which 
confirms  the  right  of  representation,  where  the  au- 
thor had  consented  to  or  authorized  it  previously  to 
the  passing  of  the  act,  to  the  person  to  whom  he  had 
given  such  consent  or  authority. 

The  second  section  of  this  act  inflicts  a  penalty 
upon  the  unauthorized  representation  of  any  drama- 
tic or  musical  composition,  or  any  part  thereof.    What 

pyrisjht,  wliich  consisted  in  there-  acting  or  publishing:  such  a  play,  by 

prtiduoiion   of    the   genuine    notes,  persons    who    have  taken   it   down 

Heriouard,  torn.  ii.  pp.  109,  130.  from  ihe  mouths  of  the   aiiihorized 

'  Ante,  p.  166.  performers.       Macklin  v.  Richard- 

'  Coleman  v.  Walthen,  5  T.  R.  son,  .^mbl.  694. 

245  ;    Murray  v.  Ellistcm,   5  B.  &  '  Morris  %i.  Kelley,  1  Jac.  &  W. 

Aid.  657.     So,  too,  the  representa-  481.     It  does  not  distinctly  appear, 

tion  of  an  unpublished   play,   under  that  the   play  in    question  h;id  not 

the  sanction  of  the  author,  is  not  a  been  pul)!ished.  but  the  case  implies 

publication  by  him,  and   an  injnnc-  that  it  had  not  been, 
lion  will  be  granted  to  prevent  the 


PIRACY    OF    PRINTS.  301 

amounts  to  a  representation  of  a  part  of  a  dramatic 
or  musical  composition  has  been  held  to  be  a  ques- 
tion of  fact  for  the  jury,  and  not  a  ([uestion  of  law,  in 
an  action  founded  on  this  statute  ;  and  where  the 
jury  found  the  unauthorized  singing  of  three  songs  of 
an  opera  to  be  such  a  representation,  the  court  of 
common  pleas  refused  to  disturb  the  verdict,  being 
of  opinion  that  the  statute  intended  to  prohibit  the 
performance  altogether.^ 

The  extent  to  which  music  may  be  used,  by  adap- 
tation for  a  different  kind  of  performance  than  that 
for  which  it  was  originally  composed  and  published, 
came  under  consideration  in  a  recent  case,  already 
referred  to  in  the  discussion  on  literary  abridgments.^ 
The  doctrine  was  laid  down,  that  a  piracy  is  com- 
mitted, where  the  appropriated  music,  though  adapt- 
ed to  a  different  purpose  from  that  of  the  original, 
may  still  be  recognized  by  the  ear  ;  and  that  the 
adding  variations  makes  no  difference  in  the  princi- 
ple.=^  ' 

The  rules  which  determine  when  the  copyright  of 
a  print  or  engraving  is  infringed,  are  entirely  ana- 
logous to  those  applied  to  literary  compositions. 
There  may  be  an  exact  reproduction,  or  an  imitation 
of  the  main  design,  with  alterations  merely  colorable. 
When  the  design  is  the  original  production  of  the 
artist  —  the  fruit  of  his  own   imagination — no  other 


'  Planchti   I'.  Braham,     IG   Law         '  D'Almaine  v.  Boosey,   1   Y.  & 
Jour.  25.  Coll.  Exchcq.  K.  268,  302. 

*  Ante,  pp.  280,  281. 

96 


302  LAW    OF    COPYRIGHT. 

person  can  publish  it,  because  there  is  no  common 
source  to  resort  to  ;  and  where  there  is  a  common 
source,  as  where  the  subject  of  the  engraving  is  an 
object  in  nature  or  a  work  of  art,  that  common 
source,  and  not  the  original  print,  may  be  resorted 
to.^  The  question  therefore  will  be  in  both  cases, 
whether  the  defendant  has  copied  or  unlawfully  imi- 
tated the  plaintiff's  print.  A  copy  has  been  said  to 
be  that  which  comes  so  near  to  the  original,  as  to 
give  every  person  the  idea  created  by  the  original.^ 
So,  too,  if  there  be  such  a  similitude  and  conformity 
between  the  two  prints,  that  the  person  who  exe- 
cuted the  one  must  have  used  the  other  as  a  model, 
he  will  be  deemed  a  copyist  of  the  main  design.^ 

But  when  the  original  design  of  an  artist  is  taken 
from  a  print  and  appropriated  and  used  in  another 
form  and  by  another  vehicle  than  by  a  reprint,  and 
without  a  sale,  a  very  nice  question  arises,  whether 
the  statutes  have  given  any  remedy.  The  17  Geo.  III. 
c.  57,  enacted,  that  "  if  any  engraver,  etcher,  print- 
seller,  or  other  person  shall,  within  the  time,  &c.  en- 
grave, etch,  work,  or  cause  or  procure  to  be  engrav- 
ed, etched,  or  worked  in  mezzotinto  or  chiaro  oscuro, 
or  otherwise  or  in  any  other  manner  copy  in  the  whole 
or  in  part,  by  varying,  adding  to  or  diminishing  from 


'  Blackwalh'.  Harper,  2  Atk.  92.  Geo.  III.  c.  57,  ^  I,  ^  person  who 

Wilkins  v.    Aiken,    17  Ves.    422.  sells  a  piratical  print  is  liable  to  an 

De  Berenger  v.  Wheble,  2  Starkie  action,  whether   he   knew  it  to  be 

N.  P.  C.  518.  pirated  or  not.     llnd. 

*  West  V.  Francis,  5  B.  &  Aid.  ^  Koworih  v.  Wilkes,  1  Campb. 

737,  per  Bayley  J.     Under  the  17  94. 


PIRACY    OF    PRINTS.  303 

the  main  design,  or  shall  print,  reprint  or  import  for 
sale,  or  cause  or  procure  to  be  printed,  reprinted  or 
imported  for  sale,  or  shall  publish,  sell  or  otherwise 
dispose  of  any  copy  or  copies  of  any  historical  print 
or  prints  of  any  portrait,  conversation,  landscape  or 
architecture,  map,  chart  or  plan,  or  any  other  print 
or  prints  whatsoever,  which  hath  or  have  been  or 
shall  be  engraved,  etched,  drawn  or  designed  in  any 
part  of  Great  Britain,  without  the  consent  of  the 
proprietor,  &c.,  such  proprietor  shall  and  may,  by  a 
special  action  upon  the  case  to  be  brought,  &lc.,  re- 
cover such  damages  as  a  jury  on  the  trial  of  such 
action  or  on  the  execution  of  a  writ  of  inquiry  there- 
on, shall  give  or  assess,  together  with  double  costs 
of  suit."  ^ 

Mr.  Martin,  a  celebrated  artist,  painted  from 
sketches,  which  he  had  designed,  a  picture  called 
Bclshazzar's  Feast,  which  he  subsequently  sold.  A 
few  years  afterwards,  he  engraved  and  published, 
from  the  sketches,  a  print  of  the  same  name,  having 
previously  done  all  necessary  acts  for  securing  to 
himself  the  copyright  of  the  print.  The  defendant, 
having  purchased  one  of  the  prints,  had  it  copied  on 
canvass,  in  colors,  on  a  very  large  scale,  and  with 
dioramic  effect ;  and  he  publicly  exhibited  the  dio- 
ramic  copy,  for  money,  and  described  it,  in  adver- 
tisements as  "  Mr.  Martin's  Grand  Picture  of  Bcl- 
shazzar's Feast,  painted  with  dioramic  effect."    The 

'   See  Appendix,  p.  24. 


304  LA.W    OF    COPYRIGHT. 

sale  of  the  plaintiff's  print  having  been  injured,  as  he 
alleged,  by  the  exhibition,  a  bill  was  filed,  praying 
that  the  defendant  might  be  restrained  from  further 
exhibiting  the  dioramic  copy,  and  from  representing 
to  the  public  that  it  was  the  production  of  the  plain- 
tiff; and  that  the  defendant  might  account  for  and 
pay  to  the  plaintiff  the  profits  he  had  made  by  the 
exhibition. 

Sir  L.  Shadwell,  V.  C.  refused  to  grant  the  injunc- 
tion, until  the  right  had  been  established  at  law, 
thinking  that  the  statute,  17  Geo.  III.  c.  57,  was  not 
intended  to  apply  to  a  case  where  there  was  no  inten- 
tion to  print,  publish  or  sell,  but  only  to  exhibit  in  a 
certain  manner  ;  that  exhibiting  for  profit  is  in  no 
way  analogous  to  selling  a  copy  of  a  print  ;  and  that 
the  copy  exhibited  being  in  oils  and  of  different 
dimensions  from  the  plaintiff's  print,  and  being  ex- 
hibited in  a  fixed  place  and  in  a  given  manner,  made 
a  case  which  the  statute  did  not  contemplate.^ 

'  Martin  w.  Wright,  6  Simons  R.  ag-ainst  the  offence  of  copying  «nd 
297.  His  Honor  observed,  that  if  selling.  But  the  words  of  the  nnore 
Mr.  Martin  had  exhibited  his  pic-  recent  act  are,  "  otherwise  or  in  any 
ture  as  a  diorama,  he  might  have  other  manner  copy  in  the  whole  or 
been  entitled  to  an  injunction.  With  in  part  by  varying  adding  to  or  di- 
grea^  deference,  I  venture  to  sug-  minishing  from  the  main  design," 
gest,  that  the  act  of  17  Geo.  III.  seem  to  stand  disjunctively  in  the 
c.  57,  is  much  more  broad  in  its  contest,  and  to  create  a  separate 
terms  than  the  8  Geo.  II.  c.  13.  offence  from  that  of  selling,  which 
The  words  of  the  latter  arc,  "  shall  is  prohibited  in  the  clause  imme- 
engrave  etch  or  work  as  aforesaid,  diately  following.  If  so,  then  the 
or  in  any  other  manner  copy  (nid  sell  mere  copying  of  a  print,  in  mezzo- 
ox  cause  to  be  engraved  etched  or  /iw/^,  c//mroo5cwro,  or  otherwise  or  in 
copied  and  sold  in  the  whole  or  in  any  other  manner,"  gives  the  pro- 
part,  by  varying  adding  to  or  dirnin-  prietor  a  right  of  action,  without 
ishing  from  the  main  design,"  &c.  any  sale,  and  he  may  show  his  dam- 
This  provision   is  clearly  directed  ages  to  have  accrued  from  exhibi- 


PIRACY    OF    PRINTS.  305 

In  the  United  States,  the  statute  of  1831  provides, 
that  if  any  person  shall  engrave,  etch,  or  work,  sell, 
or  copy,  or  cause  to  be  engraved,  etched,  worked  or 
sold,  or  copied,  either  on  the  whole,  or  by  varying, 
adding  to,  or  diminishing  the  main  design  of  a  print, 
cut  or  engraving,  map,  chart,  or  musical  composi- 
tion, with  intent  to  evade  the  law,  or  shall  print  or 
import  for  sale,  or  cause  to  be  printed  or  imported 
for  sale,  any  such  map,  chart,  &c.  without  the  con- 
sent of  the  proprietor  of  the  copyright,  first  obtained 
in  writing,  signed  in  the  presence  of  two  credible 
witnesses,  or  knowing  the  same  to  be  so  printed  or 
imported  without  such  consent,  shall  publish,  sell, 
or  expose  to  sale,  or  in  any  manner  dispose  of  any 
such  map,  chart,  &lc.  without  such  consent,  then 
such  oflfender  shall  forfeit,  &,c. 


tion,  or  injury  to  his  reputation,  or  further  provisions  should  be  made  as 
interception  of  profits.  The  pre-  are  hereinafter  rnenlioneii  and  con- 
amble  of  the  act  17  Geo.  III.  tained.  If  copying  alone  is  noi  made 
c.  57,  declares,  that  the  motive  for  a  new  substantive  ground  of  action; 
further  provisions  is  that  "  the  for-  the  statute  has  added  notliinij  but  an 
mer  acts  have  not  effectually  an-  action  on  the  case,  in  the  place  of 
swered  the  purposes  for  which  ilicy  penalties.  Yet  it  has  manifestly  de- 
were  intended,"  and  that  "  it  is  ne-  scribed  the  causes  ol'  action  in  differ- 
ces-sary  for  the  encouragement  of  ent  terms  fmm  tiie  former acis.  See 
artists  and  for  securino:  to  them  the  the  remarks  of  liailov  J.  in  West  i\ 
property  of  and  in  their  wurks,  and  Francis,  5  B.  &  Aid.  741.  S.  C. 
for  the  iidvnncenicnt  and  improve-  1  Uowl.  &  R.  400, 
ment  of  the  aforesaid  arts  that  such 


86* 


CHAPTER  X. 

OF    THE    REMEDY    FOR    AN    INFRINGEMENT   OF    COPY- 
RIGHT. 

Literary  property  is  protected  by  several  reme- 
dies, which  differ  widely  from  each  other  in  point  of 
efficiency,  as  well  as  in  form. 

1.    Common  Law  and  Statute  Remedies. 

The  question  whether  there  is  any  common  law 
remedy  for  the  protection  of  this  species  of  pro- 
perty—  which,  since  the  year  1774,  has  been  held, 
as  to  printed  books,  to  depend  entirely  upon  stat- 
ute —  was  decided  by  Lord  Kenyon  in  the  affirmative. 
He  held  that  the  statute  having  vested  the  right  in 
the  author,  for  a  given  period,  the  common  law 
remedy  attaches  to  the  right,  notwithstanding  the 
statute  gave  an  action  for  penalties  to  any  common 
informer.  The  penalties  were  not  provided  as  a 
remedy  to  the  party  aggrieved  ;  and  consequently 
the  common  law  remedy  attaches,  no  other  being 
specifically  provided.^ 

'  Beckford  v.  Hood,  7  T.  R.  G20.  sue   at  common  law  for  damages, 

In  this  case  it  was  also  held,  that  but  only  to  bring  his  action  for  the 

an  entry  at  Stationers'  Hail    was  penalty.     See  ante,  p.  194,  as  to  the 

not  necessary  to  enable  the  party  to  law  in  the  United  States. 


STATUTE    REMEDIES.  307 

This  decision  was  upon  the  statute  8  Anne,  c.  19, 
Subsequently,  the  act  54  Geo.  III.  c.  156,  gave  a  spe- 
cial action  on  the  case  to  the  proprietor  of  a  book, 
against  any  person  for  printing,  reprinting,  import- 
ing or  publishmg  or  exposing  it  to  sale,  by  which  he 
may  recover  such  damages  as  the  jury  may  see  fit  to 
assess. 

The  act  5  &  6  Vict.  c.  45,  §  15,  provides,  that  if 
any  person,  in  any  part  of  the  British  dominions,  shall 
print,  or  cause  to  be  printed,  either  for  sale  or  ex- 
portation, any  book  in  which  there  shall  be  subsist- 
ing copyright,  without  the  consent  in  writing  of  the 
proprietor  thereof,  or  shall  import  for  sale  or  hire 
any  such  book  so  having  been  unlawfully  printed 
from  parts  beyond  the  sea,  or,  knowing  such  book 
to  have  been  so  unlawfully  printed  or  imported,  shall 
sell,  publish,  or  expose  to  sale  or  hire,  or  cause  to  be 
sold  published  or  exposed  to  sale  or  hire,  or  shall 
have  in  his  possession  for  sale  or  hire,  any  such  book 
so  unlawfully  printed  or  imported,  without  such  con- 
sent as  aforesaid,  such  offender  shall  be  liable  to  a 
special  action  on  the  case  at  the  suit  of  the  proprie- 
tor of  the  copyright. 

The  17th  section  of  the  same  statute  enacts,  "  that 
after  the  passing  of  this  act,  it  shall  not  be  lawful  for 
any  person,  not  the  proprietor  of  the  copyright  or 
some  one  authorized  by  him,  to  import  into  the 
united  kingdom,  or  other  parts  of  the  British  do- 
minions for  sale  or  hire,  any  printed  book,  first  com- 
posed or  written,  or  printed  and  published,  in  the 


308  LAW    OF    COPYRIGHT. 

united  kingdom,  wherein  there  is  copyright,  and  re- 
printed in  any  country  or  place  out  of  the  British 
dominions  ;  and  if  any  person,  not  the  proprietor  or 
party  authorized  by  him,  shall  import  or  bring,  or 
cause  to  be  imported  or  brought,  for  "sale  or  hire, 
any  such  printed  book  into  the  British  dominions, 
contrary  to  this  act ;  or  shall  knowingly  sell,  pub- 
lish, or  expose  to  sale,  or  let  to  hire,  or  have  in  his 
possession  for  sale  or  hire,  any  such  book ;  then, 
every  such  book  shall  be  forfeited,  and  be  seized  and 
destroyed  by  any  officer  of  the  customs  or  excise  ; 
and  every  person  so  offending  shall,  on  due  convic- 
tion before  two  magistrates  of  the  county  or  place 
where  such  book  is  found,  forfeit  the  sum  of  ten 
pounds,  and  double  the  value  of  every  such  book  so 
unlawfully  imported,  sold,  published,  or  exposed  to 
sale,  or  let  to  hire,  or  had  in  possession  for  sale  or 
hire  ;  five  pounds  of  this  penalty  are  to  go  to  the 
officer  pf  customs  or  excise  making  the  seizure,  and 
the  remainder  to  the  proprietor  of  the  copyright."^ 
Pursuant  to  the  23d  section  of  the  same  act,  "  all 
copies  of  any  book  having  copyright,  and  entered  in 
the  registry  book,  which  have  been  unlawfully  printed 
or  imported,  without  the  previous  written  consent 
of  the  registered  proprietor  of  the  copyright,  shall 

*  5  &  6  Vict.  c.  45,  ^  17.    A  sub-  the  copyright  or  his  agent  has  given 

sequent  act,  5  &  6  Yict.  C.47,  ^23,  notice  in  writing   to   the   commis- 

a  sialute  relating  to  the   customs,  sioners  of  the   customs,  that  such 

absolutely  prohibits  the  importation  copyright  subsists,  and  when  it  will 

of  foreign  reprints  of  works  having  expire, 
copyright,  where  the  proprietor  of 


STATUTE    REMEDIES.  309 

be  deemed  the  property  of  sucli  registered  proprie- 
tor; and  after  demand  in  writing  he  will  be  entitled 
to  sue  for  rand  recover  such  printed  copies,  or  dam- 
ages for  their  detention,  in  an  action  of  detinue, 
from  any  party  detaining  them,  or  to  sue  for  and 
recover  damages  for  their  conversion  in  an  action  of 
trover." ' 

The  16th  section  of  the  5  &  6  Vict.  c.  45,  enacts, 
that  after  the  passing  of  that  act,  in  any  action  brought 
within  the  British  dominions  against  a  person  for  print- 
ing a  pirated  book  for  sale,  hire,  or  exportation,  or  for 
importing,  selling,  publishing,  or  exposing  it  to  sale 
or  hire,  or  causing  it  to  be  imported,  sold,  published, 
or  exposed  to  sale  or  hire,  the  defendant,  on  plead- 
ing to  the  action,  shall  give  to  the  plaintiff  a  notice 
in  writing  of  any  objections  on  which  he  means  to 
rely  on  the  trial  of  the  action.  If  the  nature  of  the 
defence  be,  that  the  plaintiff  in  the  action  is  not  the 
author  or  first  publisher  of  the  book  in  which  by  the 
action  he  claims  copyright,  or  that  he  is  not  the  pro- 
prietor of  the  copyright,  or  that  some  other  person 
than  the  plaintiff  is  the  author  or  first  publisher  or 
proprietor  of  the  copyright,  then  the  defendant  must 
specify  in  his  notice  the  name  of  the  person  he  alleges 
to  have  been  the  author,  first  publisher,  or  proprie- 
tor of  the  copyright,  together  with  the  title  of  the 
book,  and  the  time  and  place  of  its  first  publication ; 
otherwise   the   defendant  at  the   trial  will   not   be 

'  5  &  6  Vict.  c.  45,  ^  23.     See  post,  p.  76. 


310  LAW    OF    COPYRIGHT. 

allowed  to  give  any  evidence  that  the  plaintiff  is  not 
the  author,  first  publisher,  or  proprietor  of  the  copy- 
right. At  the  trial  also  no  other  objection  will  be 
allowed  to  be  made  on  behalf  of  the  defendant  than 
the  objections  stated  in  his  notice,  nor  can  it  then  be 
urged  that  any  other  person  is  the  author,  first  pub- 
lisher, or  proprietor,  of  the  copyright,  than  the  per- 
son specified  in  the  defendant's  notice  ;  nor  can  any 
other  book  be  given  in  evidence  in  support  of  the 
defence  than  the  one  substantially  corresponding  in 
title,  time,  and  place  of  publication  with  the  title, 
time,  and  place  specified  in  the  notice. 

The  26th  section  enacts,  that  if  any  action  or 
suit  be  commenced  or  brought  against  any  person 
for  doing  or  causing  to  be  done  anything  in  pursu- 
ance of  this  act,  the  defendant  may  plead  the  general 
issue,  and  give  the  special  matter  in  evidence  ;  and 
if  upon  such  action  a  verdict  be  given  for  the  de- 
fendant, or  the  plaintiff  become  nonsuited,  or  dis- 
continue his  action,  then  the  defendant  shall  have 
and  recover  his  full  costs,  for  which  he  shall  have 
the  same  remedy  as  a  defendant  has  by  law  in  any 
case. 

The  26th  section  of  the  same  statute  enacts,  that 
all  actions,  suits,  bills,  indictments,  or  informations 
for  any  offence  committed  against  this  act  shall  be 
commenced  within  twelve  calendar  months  after  the 
committing  of  the  offence,  or  the  same  shall  be  void 
and  of  none  effect  ;  provided,  that  such  limitation 
shall  not  extend  to  any  actions,  suits,  or  proceed- 


STATUTE    REMEDIES.  311 

ings  commenced  under  this  act  in  respect  of  copies 
of  books  required  to  be  delivered  to  the  British 
Museum  and  the  four  other  libraries. 

The  21st  section  of  the  5  &.  6  Vict.  c.  45,  gives 
to  the  proprietors  of  the  right  of  dramatic  or  musical 
representation  or  performance  during  the  term  of 
their  interest,  all  the  remedies  provided  by  the  3 
W.  IV.  c.  15.  By  the  3  W.  IV.  c.  15,  §  2,  it  is 
enacted,  that  if  any  person,  during  the  continuance 
of  the  exclusive  right  of  representing  a  dramatic 
piece,  cause  to  be  represented,  without  the  author's 
or  proprietor's  previous  written  consent,  such  pro- 
duction at  any  place  of  dramatic  entertainment  within 
the  British  dominions,  every  such  offender  shall,  for 
each  representation,  be  liable  to  the  payment  of  not 
less  than  405.,  or  of  the  full  amount  of  the  advantage 
arising  from  the  representation,  or  of  the  loss  sus- 
tained by  the  plaintiff,  whichever  shall  be  the  greater 
damage.  These  penalties  are  recoverable  by  the 
author  or  proprietor,  together  with  double  costs  of 
suit  in  any  court  having  jurisdiction  in  such  cases,  in 
that  part  of  the  British  dominions  where  the  offence 
is  committed.  Pursuant  to  the  24th  section  of  the 
5  &-  6  Vict.  c.  45,  the  right  to  recover  these  penal- 
ties is  not  prejudiced  by  an  omission  to  register  on 
the  part  of  the  proprietor  of  the  sole  liberty  of  repre- 
senting a  dramatic  piece. 

The  3d  section  of  the  3  W.  IV.  c.  15,  provides 
that  all  actions  or  proceedings  for  any  offence  or  inju- 
ry against  that  act  shall  be  commenced  within  twelve 


312  LAW    OF    COPYRIGHT. 

calendar  months  fj'om  the  committing  of  the  offence, 
or  else  the  same  shall  be  void  and  of  no  effect. 

By  the  8  Geo.  II.  c.  13,  any  person  pirating  a 
print  or  engraving  is  made  liable  to  forfeit  the  plate 
on  which  such  print  shall  be  copied,  and  every  sheet 
whereon  such  print  shall  be  copied  or  printed  to  the 
proprietor  of  the  original,  who  is  forthwith  to  destroy 
the  same  ;  and  the  offender  is  further  to  forfeit  five 
shillings  for  every  print  found  in  his  custody,  one 
moiety  to  the  king,  and  the  other  to  any  person  who 
shall  sue  for  the  same.  And  by  the  17  Geo.  III. 
c.  57,  extended  to  Ireland  by  the  6  &  7  W.  IV.  c.  59, 
persons  pirating  such  prints  are  made  liable  to  an 
action  on  the  case  for  damages  at  the  suit  of  the  pro- 
prietor, together  with  double  costs. 

The  3d  section  of  the  54  Geo.  III.  c.  56,  enacts 
that  if  any  person,  within  the  term  of  copyright, 
make  or  import,  or  cause  to  be  made,  imported,  ex- 
posed to  sale,  or  otherwise  disposed  of,  a  pirated 
copy  or  pirated  cast  of  any  original  sculpture  or  other 
matter  abovementioned,  whether  such  pirated  copy 
or  cast  be  produced  by  moulding,  copying,  or  other 
means  of  imitation,  to  the  detriment,  damage,  or  loss 
of  the  proprietor,  then  such  proprietor  or  his  assignee 
may,  by  special  action  on  the  case,  recover  against 
a  person  so  offending  such  damages  as  a  jury  may 
assess  at  the  time,  together  with  double  costs  of 
suit. 

Pursuant  to  the  fifth  section  of  the  same  act,  all 
actions   for   piracy  of  sculpture    must   be    brought 


STATUTE    PENALTIES.  313 

within  six  calendar  months  after  the  discovery  of  the 
offence. 

In  the  United  States,  the  statute  of  1831  provides 
penalties  to  be  recovered  by  action  of  debt,  one 
moiety  to  the  use  of  the  proprietor  of  the  copyright, 
and  the  other  moiety  to  the  use  of  the  United 
States.^  No  action  on  the  case  for  damages  is  pro- 
vided by  statute  ;  but  there  can  be  no  doubt  that 
here,  as  well  as  in  England,  such  an  action  lies  at 
common  law. 

The  statute  also  inflicts  a  forfeiture  of  the  pirated 
copies  of  the  book,  in  addition  to  the  other  penalties ;  - 
and  for  a  false  representation  that  a  book  has  been 
entered  for  copyright  according  to  the  requirements 
of  the  statute,  it  inflicts  a  forfeiture  of  one  hundred 
dollars,  to  be  recovered  by  action  of  debt,  one  moi- 
ety to  the  use  of  the  person  who  shall  sue  for  the 
same,  and  one  moiety  to  the  use  of  the  United 
States.^ 

The  10th  section  provides,  that  if  any  person  or 
persons  shall  be  sued  or  prosecuted,  for  any  matter, 
act,  or  thing  done  under  or  by  virtue  of  this  act,  he 
or  they  may  plead  the  general  issue,  and  give  the 
special  matter  in  evidence."* 

The  13th  section  limits  the  right  of  action  to  two 
years  after  the  cause  of  action  shall  have  arisen.^ 

The  penalties  for  violating  the  copyright  of  maps, 

'  Tlic  penalties  arc  fifty  cents  for  Cong.  3d  February,  1631,^6.     See 

every  sheet  in  the  party's  possession,  Appendix,  p.  95. 

printed   or  printing,   published,  im-  *  Ihid.                   ■•  Ibid.  \S  10. 

ported  or  exposed  to  sale.     Act  of  '  Ibid.  ^11.          '  Ibid.  §  13. 
27 


314  LAW    OF    COPYRIGHT. 

charts,  musical  compositions,  engravings,  cuts  or 
prints,  are,  the  forfeiture  of  the  plate  or  plates,  and 
of  one  dollar  for  every  sheet  found  in  the  possession 
of  the  party,  printed  or  published,  or  exposed  to 
sale,  the  one  moiety  to  the  true  proprietor,  and  the 
other  moiety  to  the  use  of  the  United  States.^ 

The  printing  or  publishing  any  manuscript  v^^hat- 
ever,  without  the  consent  of  the  author  or  legal  pro- 
prietor first  obtained,  (if  such  author  or  proprietor 
be  a  citizen  of  the  United  States  or  resident  therein,) 
renders  the  party  liable  to  suffer  and  pay  to  the  au- 
thor or  proprietor  all  damages  occasioned  by  such 
injury,  to  be  recovered  by  a  special  action  on  the 
case  founded  upon  the  statute,  in  any  court  having 
cognizance  thereof;  and  the  several  courts  of  the 
United  States  empowered  to  grant  injunctions  to  pre- 
vent the  violation  of  the  rights  of  authors  and  in- 
ventors, are  empowered  to  grant  injunctions  in  like 
manner,  according  to  the  principles  of  equity,  to  re- 
strain such  publications  of  manuscripts.^ 

2.  Remedies  in  Equity. 

The  jurisdiction  of  courts  of  equity,  in  cases  of 
copyright,  is  exercised  by  injunction,  and  extends, 
incidentally,  to  the  taking  an  account  of  the  dam- 
ages occasioned  by  the  piratical  publication. 

The  ground  upon  which  a  court  of  equity  exercises 
its  jurisdiction,  is,  that  damages  do  not  give  adequate 

'  ^7.  ^  ^  9.     See  post,  pp.  329,  330,  et  seq. 


REMEDY    BY    INJUNCTION.  315 

relief;  and  that  the  sale  of  copies  by  the  defendant 
is  in  each  instance  not  only  taking  away  the  profit 
upon  the  individual  work,  which  the  plaintiff  proba- 
bly would  have  sold,  but  that  it  may  injure  him  to 
an  incalculable  extent,  which  no  inquiry  for  the  pur- 
pose of  damages  can  ascertain.  A  court  of  equity 
therefore  acts  with  a  view  to  make  the  legal  right 
effectual,  by  preventing  the  publication  altogether.' 
In  general,  when  proceedings  are  instituted  to  ob- 
tain the  interference  of  a  court  of  equity,  it  is  neces- 
sary for  the  plaintiff  to  show  a  prima  facie  legal  title. 
If  the  author  of  the  book  is  himself  the  plaintiff,  he 
alleges  in  his  bill,  or  in  an  affidavit  accompanying  it, 
his  title  by  authorship  ;  and,  in  the  United  States,  it 
is  necessary  to  offer  proof  that  he  has  complied  with 
the  statute  directions  for  securing  his  right,  though 
in  England  it  is  not  necessary  to  relief  in  equity  that 
the  book  should  have  been  entered  at  stationers' 
hall."  It  is  not,  however,  indispensable  to  relief, 
that  the  party  should  have  a  strictly  legal  title.  It  is 
sufficient  that  he  has  a  clear  equitable  title.  Form- 
erly, courts  of  equity  would  not  interfere,  by  way  of 
injunction,  to  protect  copyrights  or  patents,  until  the 
title  had  been  established  at  law.  But  the  present 
course  is  to  exercise  jurisdiction,  in  all  cases  where 
there  is  a  clear  color  of  title,  founded  on  long  pos- 
session, and  assertion  of  right. ^ 

'  Hogg  u.Kirby,  8  Vcs.  215,225.  *  Rundcll  v.  Murray,  Jacobs  R. 

Wilkins  V.  Aiken,  17  Vcs.  422,  42-1.  314. 

Lawrence  D.  Smith,  Jacobs  R.  471.  ^  2    Story's  Eq.  Jurisp.    §  935. 

2  Story's  Eq.  Jurisp.  ^  930,  933.  Mawraan  v.  Tegg,  2  Russ.  385. 


316  LAW    OF    COPYRIGHT. 

But  if  the  plaintiff  claims  as  assignee  of  the  au- 
thor's title,  he  must,  by  affidavit  or  otherwise,  show 
that  his  title  came  by  written  assignment.^  He  must 
make  a  particular  title  ;  it  is  not  enough  to  say  that 
he  has  acquired  the  copyright,  but  he  must  trace  his 
title  to  the  author  or  his  assignee,  who  alone  have 
title  under  the  statute.^  But  if  the  plaintiff  claims 
as  assignee  of  an  assignee,  it  seems  that  he  will  not 
be  put  to  prove  the  original  assignment  to  his  as- 
signor, but  the  proof  of  want  of  title  will  be  thrown 
on  the  defendant  f  and  the  court  will  interfere  at 
the  suit  of  plaintiffs  who  have  a  good  equitable  title, 
even  though  it  should  not  be  quite  clear  that  their 
legal  title  is  complete. "* 

Where  a  fair  doubt  appears  as  to  the  plaintiff's 
legal  right,  the  court  directs  it  to  be  tried  at  law, 
making  in  the  interim  the  best  provision  it  can,  for 
the  benefit  of  both  parties.^  An  injunction  should 
be  granted  and  maintained,  in  the  interim,  if  the  de- 
fendant's publication  is  prejudicial  to  the  plaintiff, 
although  the  plaintiff's  right  admits  of  a  fair  doubt  ; 
and  an  action  should  be  brought  forthwith  to  try  it.*^ 
But  in  cases  of  works,  the  whole  value  of  which 
arises  from  a  temporary  demand,  the  court  acts  upon 
the  opposite  principle,  and  if  there  is  a  doubt  as  to 

>  Morris  v.  Kelley,  1  Jac.  &  W.  *  Wilkins  v.  Aiken,  17  Ves.  422. 

481.  Bramhall  v.  Ilolcomb,    3  M.  &  Cr. 

«  Gilliver  v.  Snaggs,  2  Eq.  Abr.  737. 

522.     4  Viner's  Abr.  278,  A.  4.  "  Ibid.   Universities  of  Oxford  and 

'  Morris  v.  Kelley,  1  Jac.  &  W.  Cambridge  v.  Richardson,  6  Ves. 

481.  089, 707. 

*  Mawman  i).  Tegg,  SRuss.  385. 


REMEDY    BY    INJUNCTION, 


317 


the  legal  right,  does  not  grant  the  injunction  before 
a  trial  at  law,  where  it  would  work  an  irremediable 
injury  to  the  defendant.^ 


'  Spottiswoode  v.  Clarke,  2  Phil- 
lips's Ch.  R.  151.  In  this  case  the 
lord  chancellor  laid  down  the  prin- 
ciples which  ought  to  govern  the 
discretion  of  the  court,  as  follows  : 
"  I  have  often  expressed  my  opinion 
that  unless  a  case  of  this  kind,  de- 
pending upon  a  legal  right,  is  very 
clear,  it  is  the  duly  of  the  court  to 
take  care  that  the  right  he  ascer- 
tained hefore  it  exercises  its  juris- 
diction by  injunction.  The  first 
question  to  be  determined  is  as  to 
the  legal  right,  and  if  the  court 
doubts  about  that,  it  may  commit 
great  injustice  by  interfering  until 
that  question  has  been  decided. 

"  One  objection  to  that  course  is, 
that  it  compels  future  litigation,  for 
it  orders  the  plaintiff  to  bring  an  ac- 
tion ;  whereas,  by  adopting  the  al- 
ternative course  —  suspending  the 
injunction,  with  liberty  to  the  plain- 
tiff to  bring  an  action  —  it  enables 
him  to  pause  a  little,  and  consider 
whether  it  is  worth  his  while  to  em- 
bark in  such  a  course  of  litigation  as 
will  be  necessary  to  establish  the 
right  on  which  he  insists.  A  se- 
cond objection  is,  that  the  court,  in 
granting  the  injunction,  is  express- 
ing a  strong  opinion  upon  the  legal 
question,  before  that  question  is  dis- 
cussed in  the  proper  tribunal.  It  is 
much  oettcr,  if  the  legal  right  is  to 
be  litigated,  that  this  court  should 
abstain  from  expressing  any  opinion 
upon  it  in  the  mean  tiiue. 

"  But  the  greatest  of  all  objections 
is,  that  the  court  runs  the  ris-k  of  do- 
ing the  greatest  injustice  in  case  its 
opinion  upon  the  legal  right  should 
turn  out  to  be  erroneous.  Here  is  a 
publication,  which,  if  not  issued  this 
month,  will  lose  a  great  part  of  its 
27* 


sale  for  the  ensuing  year.  If  you 
restrain  the  party  from  selling  im- 
mediately, you  proba!)ly  make  it  im- 
possible for  him  to  sell  at  all.  You 
take  property  out  of  his  pocket  and 
give  it  to  nobody.  In  such  a  case, 
if  the  plaintiff  is  right,  the  court  has 
some  means,  at  least,  of  indemnify- 
ing him,  by  making  the  defendant 
keep  an  account ;  whereas,  if  the 
defendant  be  right,  and  he  be  re- 
strained, it  is  utterly  iin possible  to 
give  him  compensation  for  the  loss 
he  will  have  sustained.  And  the 
effect  of  the  order  in  that  event  will 
be  to  commit  a  great  and  irremedia- 
ble injury.  Unless,  therefore,  the 
court  is  quite  clear  as  to  what  are  the 
legal  rights  of  the  parties,  it  is  much 
the  safest  course  to  abstain  from  ex- 
ercising its  jurisdiction  till  the  legal 
right  has  been  determined. 

"  In  the  course  of  the  argument 
cases  of  trade-marks  were  referred 
to  ;  but  trade-marks  have  nothing  to 
do  with  this  case.  Take  a  piece  of 
steel :  the  mark  of  the  manufacturer 
from  which  it  comes  is  the  only  in- 
dication to  the  eye  of  the  customer 
of  the  quality  of  the  article  ;  so  it  is 
of  blacking,  or  any  other  article  of 
manufacture,  the  particular  quality 
of  which  is  not  discernible  by  the 
eye.  But  these  cases  arc  quite 
different  from  the  present  case,  in 
which,  if  you  are  deceived  at  all,  it 
is  not  by  the  eye.  The  size,  the 
color,  the  engravings  arc  all  differ- 
ent in  the  two  works,  so  that  no  one 
who  sees  the  two  could  mistake  the 
one  for  the  other.  At  the  same  time 
I  must  say,  that  there  is  in  the  de- 
scriptions given  of  the  two  works  a 
very  rcmarkal)le  coincidence  of  ideas 
in  the  plaintiff  and  defendant,  if  the 


318  LAW    OF    COPYRIGHT. 

It  seems  to  have  been  Lord  Eldon's  practice,  not 
to  grant  an  injunction  before  trial,  where  the  doubt 
as  to  the  plaintiff's  legal  right  arose  from  the  char- 
acter of  the  work.  In  one  case,  having,  from  in- 
spection of  the  book,  a  doubt  whether  it  would  be 
held  entitled  to  protection  at  law,  because  it  im- 
pugned the  doctrine  of  the  immortality  of  the  soul, 
he  refused  to  assist  such  a  doubtful  right  by  injunc- 
tion.^ So,  also,  in  Mr.  Southey's  case,  he  acted 
upon  the  same  doctrine,  without  considering  it  ne- 
cessary to  determine  positively  whether  the  work 
was  innocent  or  not,  although  the  author  had  never 
published  it,  and  wished  to  restrain  its  publication 
altogether,  having  changed  his  opinions.^ 

Even  in  cases  where  the  plaintiff  can  only  have 
an  injunction,  and  from  any  cause  it  should  be  im- 
possible to  take  an  account,  the  plaintiff  is  entitled 
to  the  injunction.^  So,  too,  where  the  injury  is  only 
threatened,  the  party  has  a  right  to  the  injunction, 
to  prevent  that  mischief,  if  the  circumstances  war- 
rant it,  though  no  account  is  required  to  be  taken.^ 


two  wrappers  be  supposed  to  have  Therefore   the  injunction  must  be 

been  designed  independently  of  each  dissolved,  the  defendant  keeping  an 

other.     It  is  difficult  to  believe  that  account,  and  the  plaintiff  to  be  at 

that  was  pure   accident;  though  if  liberty  to  bring  an  action." 

any  fraud  was  intended,  it  certainly  •  Lawrence  v.  Smith,  Jacobs  R. 

was  a  very  clumsy  one.  471. 

"I  am  not,  however,  so  satisfied  "  Southeyw.  Sherwood,  2  Meriv. 

that  this  is  a  case  in  which  the  plain-  435. 

tiff  has  a  legal  right  against  the  de-  '  Universities  of  Oxford  andCam- 

fendant  as  to  justify  me  in  restrain-  bridge  v.  Richardson,  6  Ves.  C89, 

ing  the  latter  from  the  sale   of  his  707. 

work,  until  that  right  has  been  es-  *  Ibid, 
tablished    in   the    proper    tribunal. 


REMEDY    BY    INJUNCTION. 


319 


But  wherever  an  injunction  is  granted,  the  plaintiff 
is  entitled  to  go  on  and  take  the  account,  as  incich  n- 
tal  relief,  in  addition  to  the  relief  by  injunction.^ 

It  has  also  been  suggested,  by  Lord  Eldon,  that 
in  some  cases  it  may  be  proper  to  direct  an  issue  of 
quantum  damnificatus,  where  the  plaintiff  can  bhow 
that  the  profits  handed  over  to  him  by  the  defendant 
are  not  a  satisfaction  for  the  injury  done  to  him.- 

The  court  will  not  interfere  by  injunction  in  the 
first  instance,  where  the  plaintiff  has  for  a  long  time 
acquiesced  in  the  violation  of  his  rights,  but  will 
leave  him  to  an  action  at  law  ;^  and  where  the  con- 


'  Grierson  v.  Eyre,  9  Yes.  341. 
Universities  of  Oxford  and  Cam- 
bridge V.  Richardson,  6  Yes.  705, 
706.  Baily  v.  Taylor,  1  Russ.  & 
M.  73.  Siieriffi'.  Coates,  1  Russ. 
&  M.  159.  2  Story's  Eq.  Jurisp. 
§  933.  Eden  on  Injunctions,  ch.  xii. 
p.  2G1,  ch.  xiii.  p.  304. 

'  Mauman  v.  Tegfj,  2  Russ.  385, 
400.  The  following  are  his  lord- 
ship's observations  :  "Another  way 
of  ascertaining  the  facts  of  the  case 
is  to  send  it  to  a  jury ;  and,  in 
either  of  those  ways  of  disposing  of 
it,  the  cdurt  will  order  the  defend- 
ant to  keep  an  account  of  the  prolits 
in  the  mean  time.  But  one  dilfi- 
culty  in  all  these  cases  is,  that 
though  keeping  an  account  of  the 
profits  may  prevent  the  defendant 
from  deriving  any  profit,  as  he  may 
ultimately  be  obliged  to  account  to 
the  phiintiir  for  all  his  gains,  yet  if 
the  work  which  the  defendant  is 
publishing  in  the  meantime,  really 
affects  the  sale  of  the  work  which 
the  plaintiff  seeks  to  protect,  the 
consequence  is,  that  the  rendering 
the  profits  of  the  former  work  to  the 
complaining  party  may  not  be  a  sat- 


isfaction to  him  for  what  he  might 
have  been  enabled  to  have  made  of 
his  own  work,  if  it  had  been  the 
only  one  published  ;  for  he  would 
argue,  that  the  profits  of  the  defend- 
ant, as  compared  with  the  profits 
which  he,  the  plaintiff,  has  been 
improperly  prevented  from  making, 
could  only  be  in  the  proportion  of 
eight  shillings,  the  price  of  a  copy 
of  the  one  book,  to  one  guinea,  tlie 
price  of  a  copy  of  the  other.  ]f  the 
principle,  upon  which  the  court 
acts,  is,  that  satisfiiction  is  to  be 
made  to  the  plaintiff,  1  cannot  see, 
though  I  never  knew  it  done,  why, 
if  a  party  succeeds  at  law  in  proving 
the  piracy,  the  court  should  not  give 
him  leave  to  go  on  to  ascertain,  if 
he  can,  his  dainages  at  law  :  or  if, 
after  applying  the  profits  whicii  are 
handed  over  to  him  by  the  delend- 
anls,  he  can  show  that  they  were  not 
a  satisfaction  for  the  injury  done 
to  him,  I  cannot  see  why  the  court 
might  not  in  such  a  case  direct  an 
issue  to  try  what  further  damnifica- 
tion the  plaintiffhad  sustained." 

^  Piatt  V.  Button,    19  Yes.    147. 
Rundell  V.  Murray,  Jacobs  R.  314. 


620  LAW    OF    COPYRIGHT. 

duct  of  the  plaintiff  has  been  such  as  to  induce  the 
defendant  to  believe  that  the  publication  of  the  latter 
would  not  be  objected  to,  the  court  will  not  interfere 
by  injunction,  until  after  a  trial  at  law.^ 

Where  there  is  a  dispute  as  to  the  construction  of 
an  agreement  between  the  parties,  the  court  will  not 
grant  an  injunction,  until  the  effect  of  the  agreement 
has  been  established  at  law." 

Where  the  plaintiff  states  circumstances  which  are 
not  denied,  showing  that  he  is  entitled  to  an  equita- 
ble copyright  in  a  work,  the  court,  in  directing  an 
action  to  be  brought  by  him,  to  determine  the  ques- 
tion of  piracy,  will  direct  the  defendant,  for  the  pur- 
poses of  the  action,  to  admit  a  legal  copyright  in  the 
plaintiff.^ 

In  exercising  its  jurisdiction,  the  court  has  first  to 
decide  whether  there  ought  to  be  an  injunction ;  and 
if  there  is  to  be  an  injunction,  it  has  next  to  deter- 
mine, whether  the  injunction  shall  be  against  the 
whole  work,  or  only  against  a  part  of  it.  The  ex- 
tent to  which  the  injunction  ought  to  go,  must  in 
each  case  depend  on  the  particular  circumstances  of 
that  case.^ 

The  manner  in  which  the  injunction  is  to  issue, 
and  the  extent  to   which  it  is  to  be  applied  to  the 

But  if  the  delay  in  making  npplifa-  ^  Walcott  v.  Walker,  7  Ves.  1. 

lion  to  the  court  can   be  acconnted  Lowndes  r.  Duncombe,  1  Law  Jour, 

for,  the  plaintiff  will  lose  none  of  his  51. 

rights.     Mavvman  v.  Tegg,  2  Russ.  '■^  Sweet  v.  Shaw,  17  Law  Journ. 

393.  216. 

'  Saunders  v.  Smith,  3  M.  &  Cr.  ^  Mawman  v.  Tegg,  2  Russ.  393. 
711. 


REMEDY    BY    INJUNCT  ON.  321 

work  of  the  defendant,  may  cause  some  embarrass- 
ment, where  a  part  only  of  the  defendant's  book  has 
been  borrowed  from  that  of  the  plaintiff.  The  gen- 
eral principle  upon  which  the  court  proceeds  in  the 
exercise  of  its  jurisdiction,  is,  that  in  order  to  amount 
to  an  infringement,  so  that  an  injunction  ought  to  be 
granted,  it  is  not  necessary  that  there  should  be  a 
complete  copy  or  imitation  throughout ;  but  only 
that  there  should  be  an  important  and  valuable  por- 
tion, which  operates  injuriously  to  the  copyright  of 
the  plaintiff.^  Wherever  it  appears  by  sufficient  evi- 
dence that  a  copyright  exists,  and  that  piracy  has 
been  committed  to  an  extent  which  is  likely  to  be 
seriously  prejudicial  to  the  plaintiff,  an  injunction 
ought  to  be  granted,  the  extent  of  which  must  de- 
pend on  the  amount  of  the  piracy  proved,  and  the 
nature  of  the  work.~ 

'  Emerson  w.  Davics,  3  Story's  R.  been  ascertained  that  the  defend- 
768,  795;  Wilkins  v.  Aiken,  17  ant  has  in  any  decree  violated  the 
Ves.  42-2;  Bramhall  v.  Holcomb,  3  right  of  the  plaintiff,  the  nature  and 
M.  &  Cr.  737  ;  Campbell  v.  Scott,  extent  of  the  order  to  be  made  must 
11  Simons,  31  ;  Mawman  v.  Tegg,  depend  on  the  circumstances  of  the 
2  Russ.  38.'),  397,  400.  In  Camp-  cases,  and  the  amount  and  extent  of 
bell  I'  Scott,  Lord  Cottcnham  said,  the  evidence  adduced.  The  piracy 
"  If  the  court  clearly  sees  that  there  proved  may  be  so  inconsiderable, 
has  been  anything  done  which  tends  and  so  little  likely  to  injure  the  plain- 
to  an  injury,  I  cannot  but  think  that  tiff,  that  the  court  may  decline  to  in- 
the  safest  rule  is  to  follow  the  legal  terfere  at  all,  and  may  leave  the 
right  and  grant  the  injunction."  plaintiff  to  his  remedy  at  law;  or 
Sir  .1.  Leach,  .V.  C,  directed  an  in-  the  piracy  proved  may  be  extensive 
junction,  to  "restrain  the  publica-  in  a  greater  or  less  degree,  such 
tion  of  any  works  or  work  in  which  as  to  leave  it  extremely  doubtful 
the  matter  of  the  plaintiff's  publica-  whether  the  parts  not  examined  are 
tion,  or  any  part  thereof,  was  ver-  in  any  degree  piratical,  or  such  as  to 
bally  or  substantially  introduced."  make  it  more  or  less  probable  that 
See  Pinnock  x\  Rose,  cited  2  Bro.  they  have  been  coiuposed  in  the 
Ch.  R.  85,  n.  same    manner,    collected   from    the 

*  Lewis  I".  Fullerton,  2Bcavan,6.  like  sources  as  the  parts  which  have 

Lord  Langdale,  M.  R.,  in  this  case,  been  examined,  and  are  in  an  equal 

said,  "  I  conceive  that  when  it  has  degree  liable  to  the  charge  of  piracy. 


322 


LAW    OF    COPYRIGHT. 


Notwithstanding  the  eflfect  of  an  injunction  against 
parts  of  a  book  may  be  to  destroy  it   altogether,   if 


"  The  hardship  of  restraining,  or 
doing  that  which  is  equivalent  to  re- 
straining the  whole  of  a  work,  when 
part  of  it  consists  of  original  mat- 
ter, has  always  been  urged  in  cases 
of  this  nature,  and  the  answer  which 
is  given  by  Lord  Eldon,  in  the  case 
to  which  I  have  already  referred, 
seems  conclusive  :  '  If  the  parts 
which  have  been  copied  cannot  be 
separated  from  those  which  are 
original  without  destroying  the  use 
and  value  of  the  original  matter,  he 
who  has  made  an  improper  use  of 
that  which  did  not  belong  to  him 
must  suffer  the  consequences  of  so 
doing  ;  if  a  man  mixes  what  belongs 
to  him  Avith  what  belongs  to  me, 
and  the  mixture  be  forbidden  by 
the  law,  he  must  again  separate 
them,  and  he  must  bear  all  the  mis- 
chief and  loss  which  the  separation 
may  occasion.  If  an  individual 
chooses  in  any  work  to  mix  my  lit- 
erary matter  with  his  own,  he  must 
be  restrained  from  publishing  the 
literary  matter  which  belongs  to 
me ;  and  if  the  other  parts  of  the 
work  cannot  be  separated,  and  if  by 
that  means  the  injunction  which  re- 
strained the  publication  of  my  lite- 
rary matter  prevents  also  the  publi- 
cation of  his  own  literary  matter,  he 
has  only  himself  to  blame.' 

"  In  cases  of  this  nature,  it  must 
be  observed,  that  nothing  but  an  in- 
junction can  sufficiently  protect  the 
injured  party.  In  the  same  case 
Lord  Eldon  has  observed  that, 
'  though  keeping  an  account  of  the 
profits  rnay  prevent  the  defendant 
from  deriving  any  profit,  as  he  may 
uUimalely  be  obliged  to  account  to 
the  x>laintiff  for  all  his  gains,  yet  if 
the  work  which  the  defendant  is 
publishing  in  the  meantime  really 
affects  the  sale  of  the  work  which 
the  plaintiff  seeks  to  protect,  the 


consequence  is,  that  the  rendering 
the  profits  of  the  former  work  to 
the  complaining  party,  may  not  be 
a  satisfaction  to  him,  for  what  he 
might  have  been  enabled  to  have 
made  of  his  own  work,  if  it  had 
been  the  only  one  published  ;  for  he 
would  argue,  that  the  profits  of  the 
defendant,  as  compared  with  the 
profits  which  he,  the  plaintiff,  has 
been  improperly  prevented  from 
making,  could  only  be  in  the  propor- 
tion of  the  price  of  a  copy  of  the 
one  book  to  the  price  of  a  copy  of 
the  other.'  On  the  whole,  for  the 
reasons  thus  stated,  it  appears  to 
me,  that  an  injunction  ought  to  be 
granted,  whenever  it  appears,  by 
sufficient  evidence,  that  a  copyright 
exists,  and  that  piracy  has  been 
committed  to  an  extent  which  is 
likely  to  be  seriously  prejudicial  to 
the  plaintiff;  and  that  the  extent  of 
the  injunction  must  depend  on  the 
amount  of  proof  and  the  nature  of 
the  work.  The  plaintiffs  in  the 
present  case  ask  for  an  injunction, 
to  restrain  the  defendant  from  pub- 
lishing the  whole  or  any  part  of  the 
defendant's  gazetteer.  As  it  ap- 
pears from  the  evidence  that  there 
arc  parts  of  the  defendant's  gazet- 
teer which  are  not  borrowed  from 
the  plaintiff's  work,  I  cannot  grant 
an  injunction  in  those  terms ;  and  it 
becomes  a  question,  whether  an  in- 
junction should  be  granted  in  gen- 
eral terms  against  such  parts  as  have 
been  pirated,  or  whether  means 
should  be  taken  to  ascertain  what 
particular  parts  have  been  pirated, 
in  order  that  the  publication  of  those 
particular  parts  may  be  restrained. 
Now  it  appears  to  me,  not,  it  must 
be  admitted,  by  absolute  proof  and 
demonstration,  for  the  two  works 
have  not  been  examined  in  every 
part,  but  upon  proof  and  demonstra- 


REMEDY    BY    INJUNCTION. 


323 


the  piracy  is  proved,  these  consequences  will  not 
avert  the  injunction,  even  if  the  other  parts  of  the 
book  be  wholly  original.^ 


tion  as  to  part,  and  as  to  the  rest  by 
strong  inference  and  presumption, 
arising  from  the  proof  given  as  to 
those  parts  to  vvhicli  tlic  proof  ap- 
plies, and  from  the  nature  of  the 
work  and  the  circumstances  under 
which  it  is  proved  to  have  been  com- 
posed, that  if  the  parts  pirated  were 
taken  away,  though  some  articles 
would  remain  in  their  entirety,  yet 
the  greater  number  would  be  left  in 
a  state  so  imperfect  and  incomplete, 
that  the  defendant's  work  would 
lose  its  distinctive  and  useful  cha- 
racter as  a  gazetteer. 

"If  the  defendant  were  desirous 
to  avail  himself,  as  he  has  an  un- 
doubted right  to  do,  of  any  original 
matter  of  his  own,  or  of  any  matter 
which  he  has  fairly  taken  from 
other  sources,  he  would,  I  think,  be 
under  the  necessity  of  recomposing 
his  work,  for  the  purpose  of  sepa- 
rating tbat  which  appears  to  me  to 
have  been  improperly  taken  from 
the  plaintiff's  work.  Lord  Eldon 
says,  (2  Russ.  399.)  '  In  the  cases 
which  have  come  before  me,  my  lan- 
guage has  been,  that  there  must  be 
an  injunction  against  such  part  as  has 
been  pirated,  but  in  tliose  casps  the 
part  of  the  work  which  was  affected 
with  the  character  of  piracy  was  so 
very  considerable,  that  if  it  were 
taken  away,  there  would  have  been 
nothing  left  to  publish  except  a  few 
broken  sentencjcs  ; '  and  it  was  be- 
cause the  evidence  before  him  did 
not  enable  him  to  approach  suffi- 
ciently to  that  result,  that  he  made 
the  particular  order  which  he  did  in 
that  case. 

"  But  in  this  case,  having  availed 
myself  of  the  evidence  which  has 
been  so  industriously  collected  during 


the  long  time  that  this  motion  was 
pending,  and  having  read  with  great 
care  all  the  affidavits  laid  before  me, 
and  more  particularly  tlie  affidavits 
of  Mr.  Ilolliday  and  Mr.  Cunning- 
ham, I  think  that  I  have  reasons  on 
whif'h  I  ought  judicially  to  act,  for 
considering,  that  the  parts  of  the 
works  which  have  been  examined 
and  compared,  afford  fair  indications 
of  the  nature  and  character  of  those 
parts  of  tiie  works  which  have  not 
yet  been  examined  and  compared; 
and  it  appearing  to  me,  under  these 
circumstances,  that  if  the  parts 
affected  with  the  character  of  piracy 
were  taken  away,  there  would  be 
left,  I  cannot  say  nothing  but  a  few 
broken  sonlencos.  but  there  would 
be  left  an  imperfect  work,  which 
could  not,  to  any  useful  extent, 
serve  the  purposes  of  a  gazetteer,  I 
think  that  I  ought  to  grant  an  in- 
junction, to  restrain  the  publication 
of  the  parts  which  are  pirated,  with- 
out wailing  till  all  the  parts  which 
have  been  pirated  can  be  distinctly 
specified  ;  and  therefore  the  order 
whicli  I  shall  make  will  be :  Let 
the  defendant,  his  agents,  servants 
and  workincn  be  restrained  from 
further  printing,  publishing,  selling 
or  otherwise  disposing  of  any  copy 
or  copies  of  a  book  called  '  A  New 
and  Comprehensive  Gazetteer,'  &c., 
containing  any  articles  or  article, 
passaijps  or  passage,  copied,  taken 
or  colorably  altered  from  a  book 
called  'The  Topographical  Diction- 
ary of  England,'  published  by  the 
plaintiffs." 

'  In  Mawman  v.  Tegg.  2  Russ. 
390,  Lord  F.Uion  said,  "  As  to  the 
hard  consequences  which  would  fol- 
low  from    granting    an    injunction, 


324  LAW    OF    COPYRIGHT. 

The  court,  however,  seldom  grants  an  injunction 
against  the  whole  of  a  work,  without  having  first  as- 
certained, either  by  inspection  or  by  reference  to  a 
master,  the  quantity  of  matter  pirated.  Where  the 
extracts  are  trifling,  the  court  will  not  interfere.* 
But  in  order  to  ascertain  how  the  injunction  is  to  be 
applied,  the  quantity  of  matter  pirated  by  the  de- 
fendant ought  to  be  ascertained.^  Where,  however, 
a  considerable  portion  of  the  defendant's  publication 
has  thus  proved  to  be  pirated,  the  court  will  grant  an 
injunction  to  restrain  the  publication  of  the  parts 
which  are  pirated,  without  waiting  till  all  the  parts 
pirated  can  be  ascertained.^ 

In  a  later  case,  the  alleged  piracy  consisted  in 
taking  from  a  periodical  work  devoted  to  reports  of 
cases  in  the  courts  of  law.  It  was  objected  that  the 
plaintiff  did  not  specifically  point  out  what  were  the 
articles  in  which  he  claimed  copyright,  but  the  court 
held  that  was  not  necessary,  as  in  voluminous  works 

when  a  very  large  proportion  of  the  mix  my   literary  matter    with  his 

work  is  unquestionably   original,   I  own,   he   must   be  restrained   from 

can  only  say,  that,  if  the  parts,  which  publisliing  the  literary  matter  which 

have  been  copied,  cannot  be  sepa-  belongs  tome;  and  if  the  parts  of 

rated  from  those  which  are  original,  the  work  cannot  be  separated,  and 

williout  destroying  the  use  and  value  if    by    that   means   the    injunction, 

of  the  original  matter,  be  who  has  which  restrained  the  publication  of 

made  an  improper  use  of  that  which  my  literary  matter,  prevents  also  the 

did  not  belong  to  him  must  suffer  publication  of  his  own  literary  mat- 

the  consequences  of  so  doing.     If  a  ter,  he  has  only  himself  to  blame." 

man  mixes  what  belongs  to  him  with  See    also    Emerson    v.    Davies,   3 

what  belongs  to  me,  and  the  mixture  Story's  R.   708,795,796;  Folsom 

be  forbidden  by  ihe  law,  he  must  v.  Marsh,  2  Story's  R.  100,  119. 

again  separate  them,  and  he  nuist  '  Bell  u.  Whitehead,  17  Law  J.  141. 

bear  all  the  mischief  and  loss  which  *  Mawman  v.  Tegg,  2  Russ.  398. 

the  separation  may  occasion.     If  an  ^  Lewis  v.  Fullerton,  17  Law  J. 

individual  chooses  in  any  work  to  291  ;  S.  C.  2  Beavan,  6. 


REMEDY    BY    INJUNCTION.  325 

the  practice  is  to  point  out  some  specific  acts  of  pi- 
racy, as  evidence  of  infringement,  and  then,  if  the 
injunction  is  granted  at  all,  it  is  granted  gener- 
ally.^ 

In  general,  if  the  court  sees  strong  ground  for  sup- 
posing that  the  defendant's  work  is  a  violation  of 
the  plaintiir's  copyright,  the  course  is,  to  grant  an 
injunction  ex  parte,  until  answer  or  further  order. 
Then,  in  order  to  ascertain  the  fact  of  piracy  or  no 
piracy,  it  is  referred  to  a  master  to  examine  into  the 
originality  of  the  wqw  book,^  or  the  court  takes  upon 
itself  the  inspection  of  both  works.^  Where  the 
works  are  long  and  of  a  complex  character,  contain- 
ing original  matter  mixed  with  much  that  is  common 
property,  they  will  be  referred  to  a  master  ;  ■*  but 
where  they  are  of  a  class  affording  facility  for  the 
detection  of  piracy  by  immediate  inspection,  the 
court  will  examine  them.^ 

This  is  the  practice  in  the  courts  of  the  United 
States,  as  well  as  in  England.*^ 

When  the  master  reports  that  the  two  books  are 
in  parts  different  and  in  parts  the  same,  an  injunc- 
tion will  be  granted  against  those  parts  of  the  de- 
fendant's book,  which  are  similar  to  parts  of  the 


'  Swecl  V.  Mangham,  9  Law  J.         * v.  Leadbetter,  4  Ves.  681. 

323  ;  4  Jurist,  47U.  '  Butterworlli  v.  Robinson,  5  Ves. 

*  Carnan  ij.  Bowles,  2  Brn.  C.  R.  709;    Whiltingham   v.    Wooler,  2 

80;   1  Cox,  283  ;   Bell  i\  Walker,  I  Svvanst.  431. 

Br.  C.  R.  451  ;  v.  Leadbetter,  ^  Gray  v.  Russell,  1    Story's  R. 

4  Ves.  681.  11  ;  Folsom  v.  M:irsb.  2  Story's  R. 

'  Buttervvorth  v.  Robinson,  5  Ves.  100  ;   Kmerson  v.  Davies,  3  btory's 

709.  R.  768. 
38 


326  LAW    OF    COPYRIGHT. 

plaintiff's.^  But  where  the  master  reported  that  the 
books  were  not  the  same,  but  that  one  was  a  de- 
scription of  roads  by  letter  press,  and  the  other  a  de- 
scription as  to  the  greater  part  by  maps,  and  as  to 
the  remainder  by  letter  press,  but  that  the  roads  were 
in  substance  the  same,  the  court  referred  it  back  to 
the  master,  to  inquire  whether  the  defendant's  was  a 
new  and  original  work." 

Courts  of  equity  do  not  redress,  by  the  summary 
process  of  injunction,  injuries  of  a  very  trifling  cha- 
racter, but  leave  the  party  to  his  remedy  at  law. 
Thus,  where  the  defendant  had,  in  two  numbers  of  a 
periodical  work  of  theatrical  criticism,  inserted  de- 
tached extracts,  to  the  extent  of  six  or  seven  pages, 
from  a  farce,  the  property  of  the  plaintiff''s,  contain- 
ing forty  pages,  interspersed  with  criticisms,  a  bill 
for  a  perpetual  injunction  and  an  account  of  the  pro- 
fits of  the  numbers,  which  amounted  to  not  .£3,  was 
dismissed  with  costs.^  So  too,  where  the  defendant 
had  copied  from  the  plaintiff's  work,  certain  tables  of 
calculations,  and  it  was  in  evidence  that  the  tables 
might  be  calculated  anew  in  a  very  short  time  and  at 
an  expense  of  about  <£7  10s.,  which  would  have 
given  him  a  complete  title  to  publish  them,  an  in- 
junction was  refused.^ 

'  Carnan  v.   Bowles,  2  Bro.  Ch.     transcended  the  limits  of  fair  qiiota- 
R.  80.  tion   for  the  jnirposcs  of  criticism. 

2  Ibid.  See  also  Webb  v.  Powers,  10  Law 

3  Whittingham     v.    Wooler,     2     Rep.     152;    S.    C.   1   Woodbury's 
Swanst.  428.     There  was  also,  in     R. 

this  case,  ihe  additional  circumstance,         *  Baily  i».  Taylor,   1  Russ.  &  M. 
that  the  defendant  had  probably  not     73.     In  this  case  the  bill  was  filed 


REMEDY    BY    INJUNCTION.  327 

But  where  an  injunction  was  granted  on  filing  the 
bill,  and  afterwards  the  cause  was  brought  to  a  hear- 
ing, and  it  was  contended  that  on  account  of  the 
trifling  character  of  the  injury,  the  defendant  ought 
not  to  pay  costs,  it  was  held,  that  the  defendant 
ought  to  have  tendered  the  costs  after  the  injunction 
was  granted,  and  having  refused  to  do  so,  he  must 
pay  the  costs  of  the  suit.^ 

In  most  cases,  the  bill  seeks  an  account  of  the 
books  printed,  and  of  the  profits  thereof,  from  the 
person  who  has  pirated  from  the  plaintiffs  work, 
as  well  as  an  injunction.  If  the  cause  is  brought  to 
a  hearing,  and  a  perpetual  injunction  is  decreed,  the 
plaintiff  will  have  a  right  to  have  the  account  de- 
creed as  incidental,  in  addition  to  the  other  relief 
by  injunction,  unless  the  amount  would  be  very 
trifling.- 

But  in  order  to  obtain  an  account,  it  is  necessary 
that  the  plaintiff  should  entitle  himself  to  an  injunc- 
tion, since  the  account  is  a  relief  strictly  incidental 
to  the  injunction.^     The  account  is  in  practice  gen- 


aftcr  the  defendant's  work  had  been  ]y  i\  Hooper,  1  Y.  &  Cdl.  Ch.  R.  197. 

publislied  ten  years.  -  Hogg  o.  Kirby,  8  Ves.  323-325. 

'  Fradella  v.   Weller,  2  Rnss.  &  Universities   of    Oxford   and    Cam- 

M.  217.     In  this  case,  it  was  held  bridge  v.  Richardson,  6  Ves.  705, 

not  to  be  necessary,  though  iisnal,  to  70G.     Bailey  t".  Tavlor,   1   Russ  & 

produce  the  pirated  prints,  or  any  of  M.  73.   Sheritl'y.  Coates,  1  Russ.  & 

them,  where  the  fact  of  ilie  prints  ]\I.  159.     Kelly  v.  Hooper,  1  Y.  & 

being  a  piracy  was   proved,  and  not  Col.  Ch.  R.  197.     2  Storv's  Eq.  Ju- 

denied  by  the  answer.     As  to  the  risp.  i^  9.'i3.     Mitford's  j'iq.  IM.  by 

recovery  of  costs,  where  the  plaintiff  Jeremy,  138.     Eden  on  Injunctions, 

has   been   compelled   to    bring   the  ch.  12,  p.  2G1;  ch.  13,  p.  364. 

cause  to  a  hearing,   notwithstanding  '  Baily  v.  Taylor,  1  Kuss.   &  M. 

the  defendant's  submission,  seeKel-  73. 

28* 


328  LAW    OF    COPYRIGHT. 

erally  waived  ;  but  where  it  is  not,  the  court  grants 
it,  upon  principles  which  have  been  thus  stated  by 
Sir  J.  Wigram,  V.  C.  "It  is  true,  that  the  court 
does  not,  by  an  account,  accurately  measure  the 
damage  sustained  by  the  proprietor  of  an  expensive 
work  from  the  invasion  of  his  copyright  by  the  pub- 
lication of  a  cheaper  book.  It  is  impossible  to  know 
how  many  copies  of  the  dearer  book  are  excluded 
from  sale  by  the  interposition  of  the  cheaper  one. 
The  court,  by  the  account,  as  the  nearest  approxi- 
mation which  it  can  make  to  justice,  takes  from  the 
wrong-doer  all  the  profits  he  has  made  by  his  piracy, 
and  gives  them  to  the  party  who  has  been  wronged. 
In  doing  this  the  court  may  often  give  the  injured 
party  more,  in  fact,  than  he  is  entitled  to,  for  non 
constat  that  a  single  additional  copy  of  the  more  ex- 
pensive book  would  have  been  sold,  if  the  injury  by 
the  sale  of  the  cheaper  book  had  not  been  com- 
mitted. The  court  of  equity,  however,  does  not 
give  anything  beyond  the  account."^ 

The  delivery  up  of  copies  of  the  unlawful  publica- 
tion is  supposed  to  depend  entirely  upon  statute. 
However  it  might  have  been  regarded  in  England,  if 
the  common  law  right  of  authors  had  not  been  abro- 
gated by  the  decision  in  Donaldson  v.  Beckett,  it  has 
been  held,  that  there  is  now  no  common  law  right  in 
the  author  or  proprietor  of  a  book  which  is  pirated, 
to  the  delivery  up  of  the  copies  of  the  illegal  work  ; 

'  Colburn  v.  Simms,  2  Hare,  560. 


JURISDICTION    OF    THE    U.   S.  COURTS. 


329 


and  therefore  if  such  relief  is  given  in  equity,  it  must 
be  under  the  provisions  of  some  statute.^ 

The  act  54  Geo.  III.  c.  156,  §  4,  does  not  autho- 
rize the  delivery  up  of  the  copies  of  a  pirated  book, 
unless  the  genuine  work  had  been  duly  registered  as 
well  as  composed  at  the  time  the  act  is  done  to  which 
the  penalty  and  forfeiture  would  attach."  The  same 
requisite  is  contained  in  the  5  &  6  Vict.  c.  45,  §  23.^ 


The  jurisdiction  of  the  courts  of  the  United  States, 
in  cases  of  copyright  depends  upon  a  statute  passed 
February  15,  1819,  by  which  it  is  enacted,  "That 


'  Colbuvn  V.  Simms,  2  Hare,  551. 
In  this  case,  Sir  J.  Wigram,  V.  C. 
said,  "There  would  be  great  difficulty 
in  applying  to  this  subject  the  princi- 
ples of  the  coiTimon  law,  which  in 
certain  cases  give  to  the  owner  of 
an  original  material  tiieriuht  of  seiz- 
ing it,  in  whatever  shape  it  may  be 
found,  if  he  can  prove  it  it  to  be  his 
own  ;  or  which  relate  to  wh:it  is 
termed  confusion  of  goods,  by  which, 
if  one  man  voluntarily  mixes  iiis  pro- 
perty wiih  that  of  another,  so  that 
the  two  becomes  inseparable,  the 
entirety  is  held  to  belong  to  him 
whose  property  has  been  invaded. 
It  may  be  true,  that,  if  one  writes 
or  prints  upon  the  paper  of  anotiier, 
the  writing  or  printing  becomes  his 
to  whom  the  paper  belongs,  but  it 
does  not  necessarily  follow  that  the 
converse  of  that  proposition  would 
be  true,  —  that  one  who  writes  or 
prints  upon  his  own  paper  the  com- 
position of  another,  has  thereby  so 
mixed  his  properly  with  the  jiriiper- 
ty  of  ihe  author  whose  work  he  has 


copied,  that  he  has  lost  his  original 
title  to  the  material  whiidi  he  has  so 
employed.  There  might  indeed  have 
been  some  countenance  lor  such  a 
princiide  before  the  judgment  of  the 
house  of  lonis,  in  tlie  case  of  Don- 
aldson V.  Beekett.  had  confined  the 
exchisive  right  of  authors  within 
the  limits  prescribed  by  the  statute, 
and  thereby  negatived  the  existence 
of  that  ab.solnte  common  law  riirht 
in  their  works  which  had  been  pre- 
viously supposed  to  exist,  and  which 
the  decision  of  the  court  of  king's 
bench,  in  the  case  of  Millar  i'.  Tay- 
lor, had  tended  to  affirm.  I  think, 
therefore,  the  case  for  the  plaint itT 
on  this  point  must  be  placed  on  an- 
other ground,  and  that  his  right  to  a 
decree  of  this  court  for  the  delivery 
up  of  the  copies,  if  ihat  rijiht  exists, 
must  be  found  w'thin  the  provisions 
of  the  statutes,  and  not  u[on  any 
common  law  right  independent  of 
them." 

'  Ibid. 

^  See  Appendix,  p.  76. 


330  LAW    OF    COPYRIGHT. 

the  circuit  courts  of  the  United  States  shall  have 
original  cognizance,  as  well  in  equity  as  at  law,  of  all 
actions,  suits,  controversies  and  cases,  arising  under 
any  law  of  the  United  States,  granting  or  confirming 
to  authors  or  inventors,  the  exclusive  right  to  their 
respective  writings,  inventions,  and  discoveries;  and 
upon  any  bill  in  equity,  filed  by  any  party  aggrieved 
in  any  such  cases,  shall  have  authority  to  grant 
injunctions,  according  to  the  course  and  principles  of 
courts  of  equity,  to  prevent  the  violation  of  the  rights 
of  any  authors  or  inventors,  secured  to  them  by  any 
laws  of  the  United  States,  on  such  terms  and  condi- 
tions as  the  said  courts  may  deem  fit  and  reasona- 
ble :  Provided,  however,  That  from  all  judgments 
and  decrees  of  any  circuit  courts,  rendered  in  the 
premises,  a  writ  of  error  or  appeal,  as  the  case  may 
require,  shall  lie  to  the  supreme  court  of  the  United 
States,  in  the  same  manner  and  under  the  same  cir- 
cumstances, as  is  now  provided  by  law  in  other  judg- 
ments and  decrees  of  such  circuit  courts."^ 

The  jurisdiction  conferred  by  this  act  is  ample.  It 
embraces  all  cases,  both  at  law  and  in  equity,  arising 
under  the  laws  which  protect  patents  and  copyrights, 
without  regard  to  the  citizenship  of  the  parties,  or 
the  amount  in  controversy.  The  act  of  1831,  which 
gives  a  special  action  on  the  case  for  damages,  for 
the  unlawful  printing  or  publishing  of  any  manu- 
script, makes  such  damages  recoverable  in  any  court 

'  Act  of  Congress,  February  15,  1819,  eh.  xix.  3  U.  S.  Statutes  at 
large,  p.  481. 


JURISDICTION    OF    THE    U.  S.  COURTS.  331 

having  cognizance  thereof;  and  also  empowers  the 
courts  of  the  United  States,  which  are  authorized  to 
grant  injunctions  to  prevent  the  violation  of  the  rights 
of  authors  and  inventors,  to  grant  injunctions  in  like 
manner,  according  to  the  principles  of  equity,  to  re- 
strain such  publication  of  manuscripts.^ 

The  circuit  courts  of  the  United  States,  therefore, 
may  entertain  actions  at  law,  to  recover  damages  for 
the  unlawful  publication  of  any  printed  book,  under 
the  protection  of  copyright,  or  of  any  manuscript 
whatever  ;  and  may  also  entertain  bills  in  equity 
for  injunctions  to  restrain  and  prevent  such  publica- 
tions ;  although  both  the  parties  are  citizens  of  the 
same  state,  and  although  the  value  in  controversy 
may  not  exceed  five  hundred  dollars. 

'  Act  of  Congress,  February  3,  1831,  ^  9. 


APPENDIX. 


BRITISH    STATUTES. 

8  Anne,  c.  19.  —  An  Act  for  the  Encouragement  of 
Learning,  by  vesting  the  Copies  of  printed  Books 
in  the  Authors  or  Purchasers  of  such  Copies,  dur- 
ing the  Tinnes  therein  mentioned. 

"  Whereas  printers  booksellers  and  other  persons  have  g  Anne, 

of  late  frequently  taken  the  liberty  of  printing  reprinting      c.  19. 

and   publishincT  or   causinfj  to   be  printed  reprinted  and  ^-^~y"^^ 
.  ...  Seethe 

published  books  and  other  writings  without  the  consent  case  of 
of  the  authors  or  proprietors  of  such  books  and  writings  ^avlo/in 
to  their  very  great  detriment  and  too  often  to  the  ruin  of  4  Bur.  2303 
them  and  their  families  :"  For  preventing  therefore  such 
practices  for  the  future  and   for  the  encouragement  of 
learned  men  to  compose  and  write  useful  books ;  May  it 
please  your  Majesty  that  it  may  be  enacted  ;  and   be  it 
enacted  by  the  Queen's  most  excellent  Majesty,  by  and 
with  the  advice  and  consent  of  the  Lords  Spiritual  and 
Temporal  and  Commons  in  this  present  Parliament  as- 
sembled, and   by  the   authority  of  the  same,   That  from  After  lo 
and  after  the   tenth  day   of  April  one  thousand  seven  the"autiiors 
hundred  and.  ten  the  author  of  any  book  or  books  already  of  books 
printed  who  hath  not  transferred  to  any  other  the  copy  primed, 
or  copies  of  such  book  or  books  share  or  shares  thereof,  '^^'h° J^^^'^' 

t^  '  not  trans- 

or  the   bookseller  or  booksellers  printer  or  printers  or  ferred  their 
other  person  or  persons  who  hath  or  have  purchased  or  ||,"e  (.qoIj. 
acquired  the  copy  or  copies  of  any  book  or  books  in  or-  ^''?'^^^'  '^^" 
der  to  print  or  reprint  the  same  shall  have  the  sole  right  purchaseil 


2  APPENDIX. 

8  Anne,    and  liberty  of  printing  such  book  and  books  for  the  term 

c.  19.      of  one-and-twenty  years  to  commence  from  the  said  tenth 

COD       hall  ^^y  °^  April  and  no  longer  ;  and  that  the  author  of  any 

have  the       book  or  books  already  composed  and  not  printed  and 

of  priiuinrr    published  or  that  shall  hereafter  be  composed  and  his  as- 

them  for  simiee  or  assigns  shall  have  the  sole  liberty  of  printing 
the  term  of  .  j  r  & 

21  years,  and  reprinting  such  book  and  books  for  the  term  of  four- 
Aud  the  teen  years  to  commence  from  the  day  of  the  first  pub- 
books  not     lishing  the  same  and  no  longer ;  and   that   if  any  other 

printed  to     bookseller  printer   or  other  person  whatsoever  from  and 

have  the  *  .     '■ 

sole  right     after  the  tenth  day  of  Ajjril  one  thousand  seven  hundred 

for^fourteea  ^"^  *®"'  within  the  times  granted  and  limited  by  this  Act 
years.  as  aforesaid,  shall  print  reprint  or  import  or  cause  to  be 

printed  reprinted  or  imported  any  such  book  or  books 
without  the  consent  of  the  proprietor  or  proprietors  thereof 
first  had  and  obtained  in  writing  signed  in  the  presence 
of  two  or  more  credible  witnesses ;  or  knowing  the  same 
to  be  so  printed  or  reprinted  without  the  consent  of  the 
proprietors,  shall  sell  publish  or  expose  to  sale  or  cause 
to  be  sold  published  or  exposed  to  sale  any  such  book  or 
books  without  such  consent  first  had  and  obtained  as 
aforesaid  :  then  such  offender  or  offenders  shall  forfeit 
such  book  or  books  and  all  and  every  sheet  or  sheets  be- 
ing part  of  such  book  or  books  to  the  proprietor  or  pro- 
prietors of  the  copy  thereof  who  shall  forthwith  damask 
and  make  waste  paper  of  them  ;  and  further,  that  every 
Punish-       such  offender  or  offenders  shall  forfeit  one  penny  for  every 

ment  of  sheet  which  shall  be  found  in  his  her  or  their  custody 
bookseller,      .  .  .     .  i  v  i     i  / 

&c.  print-     either  printed  or  prmting  published  or  exposed  to  sale 

consent  of  ^  contrary  to  the  true  intent  and  meaning  of  this  Act ;  the 
theproprie-  one  moiety  thereof  to  the  Queen's  most  excellent  Majesty 
her  heirs  and  successors,  and  the  other  moiety  thereof  to 
any  person  or  persons  that  shall  sue  for  the  same,  to  be 
recovered  in  any  of  her  Majesty's  courts  of  record  at 
Westminster  by  action  of  debt  bill  plaint  or  information 
in  which  no  wager  of  law  essoign  privilege  or  protection 
or  more  than  one  imparlance  shall  be  allowed. 

II.     "  And  whereas  many  persons  may  through  igno- 
rance offend  against  this  Act,   unless  some  provision  be 


APPENDIX.  3 

made  whereby  the  property  in  every  such  book   as  is  in-   8  Anne, 
tended  by  this  Act  to  be  secured  to  the  proprietor  or  pro-      c.  19. 
prietors  thereof  may  be  ascertained,  as  likewise  the  con-  ^^  i^g^j- 
sent  of  such  proprietor  or   proprietors  for  the  printing  or  hooks  to  he 
reprinting  of  such  book  or  books  may  from  time  to  time  fore  publi- 
be  known  ;"  Be  it  therefore  further  enacted   by  the   au-  *=^"""  "^, 

'  •'  .  the  rei(ister 

thority  aforesaid,   That   nothing   in  this  Act  contained  book  of  ihc 
shall  be  construed  to  extend  to  subject  any  bookseller  of"^^|ion- 
nrinter  or  other  person   whatsoever  to  the  forfeitures  or  crs ;  which 
penalties  therem  mentioned  for  or  by  reason  of  the  print-  spcctLd  ai 
ing  or  reprinting  of  any  book  or  books  without  such  con-  ^"j^o^^fg^. 
sent   as  aforesaid,  unless  the  title  to  the  copy  of  such 
book  or  books  hereafter  published  shall,  before  such  pub- 
lication, be  entered  in  the  register  book  of  the  Company 
of  Stationers  in  such  manner  as  hath  been  usual,  which 
register  book  shall  at  all  times  be  kept  at  the  hall  of  the 
said  company,  and  unless  such  consent  of  the  proprietor 
or  proprietors  be  in  like  manner  entered  as  aforesaid,  for 
every  of  which  several  entries  six  pence  shall  be  paid  and 
no  more  ;  which  said  register-book  may  at  all  seasonable 
and  convenient  times  be  resorted  to  and  inspected  by  any 
bookseller  printer  or  other  person  for  the  purposes  before 
mentioned  without  any  fee  or  reward ;  and  the  clerk  of 
the  said  Company  of  Stationers  shall  when  and  as  often 
as  thereunto  required  give  a  certificate  under  his  hand  of 
such  entry  or  entries  and   for  every  such  certificate  may 
take  a  fee  not  exceeding  six  pence. 

III.  Provided  nevertheless,  That   if  the   clerk   of  the  Penalty  of 
said  Company  of  Stationers   for   the  time  being  shall  re-  Jefuslng^o 
fuse  or  neglect  to  register  or  make  such  entry  or  entries  to  do. 
or  to  give  such  certificate,  being  thereunto  required  by 
the  author  or  proprietor  of  such  copy  or   copies   in   the 
presence  of  two  or  more  credible  witnesses,  that  then 
such  person  and  persons  so  refusing,  notice  being  first 
duly  given  of  such  refusal  by  an   advertisement  in  the 
Gazette,  shall  have  the  like  benefit  as  if  such  entry  or  en- 
tries certificate  or  certificates   had  been   duly   made   and 
given ;  and  that  the  clerks  so  refusing  shall  for  any  such 
offence  forfeit  to  the  proprietor  of  such  copy  or  copies  the 


APPENDIX. 


8  Anne, 
c.  19. 


After  25 
March,  the 
Arclibishop 
of  Canter- 
bury, &c.  to 
settle  the 
prices  of 
books,  upon 
complaint 
made  that 
ihey  are 
UDreasona- 
ble. 


sum  of  twenty  pounds,  to  be  recovered  in  any  of  her  Ma- 
jesty's courts  of  record  at  Westminster  by  action  of  debt 
bill  plaint  or  information,  in  which  no  wager  of  law  es- 
soign  privilege  or  protection  or  more  than  one  impar- 
lance shall  be  allowed. 

IV.  Provided  nevertheless  and  it  is  hereby  further  en- 
acted by  the  authority  aforesaid,  That  if  any  bookseller 
or  booksellers  printer  or  printers  shall  after  the  said  five- 
and-twentieth  day  of  March  one  thousand  seven  hundred 
and  ten  set  a  price  upon  or  sell  or  expose  to  sale  any 
book  or  books  at  such  a  price  or  rate  as  shall  be  conceiv- 
ed by  any  person  or  persons  to  be  too  high  and  unreason- 
able ;  it  shall  and  may  be  lawful  for  any  person  or  per- 
sons to  make  complaint  thereof  to  the  Lord  Archbishop 
of  Canterlury  for  the  time  being  the  Lord  Chancellor  or 
Lord  Keeper  of  the  great  seal  of  Great  Britain  for  the 
time  being  the  Lord  Bishop  of  London  for  the  time  being 
the  Lord  Chief  Justice  of  the  court  of  Queen's  Bench  the 
Lord  Chief  Justice  of  the  court  of  Common  Pleas  the 
Lord  Chief  Baron  of  the  court  of  Exchequer  for  the  time 
being  the  Vice-Chancellors  of  the  two  universities  for  the 
time  being  in  that  part  of  Great  Britain  called  England 
the  Lord  President  of  the  sessions  for  the  time  being  the 
Lord  Justice  General  for  the  time  being  the  Lord  Chief 
Baron  of  the  Exchequer  for  the  time  being  the  Rector  of 
the  college  of  Edinburgh  for  the  time  being  in  that  part 
of  Great  Britain  called  Scotland  ;  who  or  any  one  of 
them  shall  and  have  hereby  full  power  and  authority  from 
time  to  time  to  send  for  summon  or  call  before  him  or 
them  such  bookseller  or  booksellers  printer  or  printers 
and  to  examine  and  inquire  of  the  reason  of  the  dearness 
and  enhancement  of  the  price  or  value  of  such  book  or 
books  by  him  or  them  so  sold  or  exposed  to  sale  ;  and  if 
upon  such  inquiry  and  examination  it  shall  be  found  that 
the  price  of  such  book  or  books  is  enhanced  or  any  wise 
too  high  or  unreasonable,  then  and  in  such  case  the  said 
Archbishop  of  Canterhurxj  Lord  Chancellor  or  Lord 
Keeper  Bishop  of  London  two  Chief  Justices  Chief  Baron 
Vice-Chancellors  of  the  universities  in  that  part  of  Great 


APPENDIX.  5 

Britain  called  England  and  the  said  Lord  President  of  8  Anne, 
the  sessions  Lord  Justice  General  Lord  Chief  Baron  and      c.  10. 
Rector  of  the  College  oi  Edinburgh  in  that  part  o^  Great  "^•^^''"'"*^ 
Britain  called  Scotland,  or  any  one  or   more  of  them  so 
inquiring  and  examining  have  hereby  full  power  and  au- 
thority to  reform  and  redress  the  same  and  to  limit  and 
settle  the  price  of  every  such  printed   book   and   books 
from   time  to   time   according  to  the  best  of  their  judfr- 
ments  and  as  to  them   shall   seem-  just   and   reasonable  ; 
and  in  case  of  alteration  of  the  rate  or  price  from  what  andifalier- 
was  set  or  demanded  by  such  bookseller  or  booksellers  price°the"''' 
printer  or  printers  to  award  and  order  such  bookseller  bookseller 
and  booksellers  printer  and  printers  to  pay  all  the  costs  order  him 

and   charges  that  the   person  or  persons  so  complainincr  'o  pay  costs 

,     ,,    ,  o  to  the  party 

shall   be  put  unto  by  reason   of  such   complaint   and  of  complain- ' 

the    causing   such  rate   or   price   to  be  so  limited    and  '"*' 
settled;    all    which  shall   be    done  by  the  said    Arch- 
bishop of  Canlerhury  Lord    Chanceller  or  Lord   Keep- 
er Bishop  of  London   two  Chief  Justices    Chief  Baron 
Vice-Chancellors  of  the  two  universities  in  that  part  of 
Crveat  Britain  called  England   and  the  said  Lord  Presi- 
dent of  the  sessions  Lord  Justice  General   Lord  Chief 
Baron  and  Rector  of  the  college  of  Edinburgh  in  ihcH 
part  of  Gi'cat  Britain  called  Scotland  or  any  one  of  them 
by  writing  under  their  hands  and  seals,  and  thereof  pub- 
lic notice  shall  be  forthwith  given  by  the  said  bookseller 
or  booksellers  printer  or  printers  by  an  advertisement  in 
the  Gazette  ;  and  if  any  bookseller  or  booksellers  printer 
or  printers  shall  after  such  settlement  made  of  the  said 
rate  and  price  sell  or  expose  to  sale  any  book  or  books  at 
a  higher  or  greater  price  than  what  shall  have  been  so 
limited  and  settled  as  aforesaid,  then  and   in  every  such 
case  such  bookseller  and  booksellers  printer  and  printers 
shall  forfeit  the  sum  of  five  pounds  for  every  such  book  Penalty  on 
so  by  him  her  or  them  sold  or  exposed  to  sale  ;  one  moi-  scllin"  at 
ety  thereof  to  the  dueen's  most  excellent  Majesty  her  ^'F''^^ 

.  J       J  rates. 

heirs  and  successors,  and  tlie  other  moiety  to  any  person  This  clause 

or  persons  that  shall  sue  for  the  same,  to  be  recovered  ""cpcaled  bv 
...  15  Geo.  II. 

With  costs  of  suit  in  any  of  her  Majesty's  courts  of  record  c.  36. 


b  APPENDIX. 

8  Anne,    at  Westminster  by  action  of  debt  bill   plaint  or  informa- 
c.  19.      tion,  in  which  no  wager  of  law  essoign  privilege  or  pro- 
tection or  more  than  one  imparlance  shall  be  allowed. 

After  10  v.  Provided  always  and  it  is  hereby  enacted,  That 

April,  nine       .  ■         ^  ■     ■       i  i       i  i      i      ^ 

copies  of      nme  copies  of  each   book  or  books  upon  the  best  paper 

shaUbe°de-  ^^^^  ^''^™  ^^^  ^^^^^  *^'^  ^^^^  ^^"^'^  ^^^  of  ^p'l7  one  thou- 
livered  to  sand  seven  hundred  and  ten  shall  be  printed  and  publish- 
housekeep-  ed  as  aforesaid  or  reprinted  and  published  with  additions 

erofthe  g^aij  jjy  ^\^q  printer  and  printers  thereof  be  delivered  to 
company  oi  •'  ^  . 

Stationers,   the  warehouse-keeper  of  the  said  Company  of  Stationers 

o7the^  "^'^   for  the  time  being  at  the  hall  of  the  said  company  before 
university    such  publication   made,  for  the  use  of  the  royal  library 
&c.       '      the  libraries  of  the  universities  of  Oxford  and  Cambridge 
the  libraries  of  the  four  universities  in  Scotland  the  libra- 
ry of  Sion  College  in  London  and  the  library  commonly 
called  the  library  belonging  to  the  Faculty  of  Advocates 
Warehouse  at  Edinburgh  respectively  ;  which  said  warehouse-keeper 
defiver  the    is  hereby  required  within  ten  days  after  demand  by  the 

books  ten  keepers  of  the  respective  libraries  or  any  person  or  per- 
days  after  ^,        ,  n    ^  ,-ii  ju 

demand.       sons  by  them  or  any  of  them  authorized  to  demand  the 

said  copy  to  deliver  the  same  for  the  use  of  the  aforesaid 
Penalty  of  libraries ;  and  if  any  proprietor  bookseller  or  printer  or 
^T^noT"^'  *^®  warehouse-keeper  of  the  said  Company  of  Stationers 
observing  shall  not  observe  the  direction  of  this  Act  therein,  that 
tionsof  this  then  he  and  they  so  making  default  in  not  delivering  the 
^^^-  said  printed  copies  as  aforesaid  shall   forfeit,   besides  the 

value  of  the  said  printed  copies,  the  sum  of  five  pounds 
for  every  copy  not  so  delivered  as  also  the  value  of  the 
said  printed  copy  not  so  delivered ;  the  same  to  be  recov- 
ered by  the  Queen's  Majesty  her  heirs  and  successors  and 
by  the  chancellor  masters  and  scholars  of  any  of  the  said 
universities  and  by  the  president  and  fellows  of  Sion  Col- 
lege and  the  said  Faculty  of  Advocates  at  Edinburgh, 
with  their  full  costs  respectively. 
Penalties  VI.  Provided   always  and  be  it  further  enacted.  That 

in  Scotland,  jf  ^ny  person  or  persons  incur  the  penalties  contained  in 
how  recov-  ■'   '  »  „    .     .  o      7      j 

erable.         this  Act  in  that  part  of  Great  Britain  called  Scotland 

they  shall   be  recoverable  by  any  action  before  the  court 

of  session  there. 


APPENDIX.  7 

VII.  Provided,  That  nothing  in  this  Act  contained  do   8  Anne, 
extend  or  shall  be  construed  to  extend  to  prohibit  the  im-      c-  ^^■ 
portation  vending  or  selling  of  any  books  in  Greek  Latin  „. . 

or  any  other  foreign  language  printed  beyond  the  seas ;  not  to  hin- 
anything  in  this  Act  contained   to  the   contrary  notwith-  poriation, 

standing.  {^^  of 

ijooks  in 

VIII.  And  be  it  further  enacted  by  the  authority  afore-  Greek,  &c. 
said,  That  if  any  action  or  suit  shall  be  commenced  or  ^""r'L^'^' 
brought   against   any  person  or  p.ersons  watsoever  for  do-  &c. 

ing  or  causing  to  be  done  any  thing  in  pursuance  of  this 
Act,  the  defendants  in  such  action  may  plead  the  general  General 
issue  and  give  the  special  matter  in  evidence  ;  and  if  '^^"^• 
upon  such  action  a  verdict  be  given  for  the  defendant  or 
the  plaintiff  become  nonsuited  or  discontinue  his  action, 
then  the  defendant  shall  have  and  recover  his  full  costs 
for  which  he  shall  have  the  same  remedy  as  a  defendant 
in  any  case  by  law  hath. 

IX.  Provided,  That  nothing   in   this   Act  contained  This  act 
shall  extend  or  be  construed  to  extend  either  to  prejudice  j'udice  the 
or  confirm  any  right  that  the  said  universities  or  any  of  right  of  the 

,  1  I    •        X       u  X     unjversi- 

them  or  any  person  or  persons  have  or  claim  to  have  to  tj^s. 
the  printing  or  reprinting  any  b(||lc  or  copy  already  print- 
ed or  hereafter  to  be  printed. 

X.  Provided  nevertheless,  That  all  actions  suits  bills  Actions  for 
indictments  or  informations  for  any  offence  that  shall  be  offences 

■>  against  this 

committed  against  this  Act  shall   be  brought  sued  and  act  to  be 
commenced  within  three  months  next  after  such  offence  ^\^f^,e 
committed  or  else  the  same  shall  be  void  and  of  none  months, 
effect. 

XI.  Provided  always,  That  after  the  expiration  of  the  After  the 
said  term  of  fourteen  years  the  sole  right  of  printing  or  ."eYrs^The 
disposing  of  copies  shall  return  to  the  authors  thereof,  if  right  of 

1  1         1-    ■  /•  1  r  r  priuting, 

they  are  then  livmg,  for  another  term  ol  fourteen  years,      ^^c.  to  re- 
turn to  the 
author  for  other  fourteen  years. 


APPENDIX. 


8  George  11.  c.  13. — An  Act  for  the  Encourage- 
ment of  the  Arts  of  Designing,  Engraving  and 
Etching  Historical  and  other  Prints,  by  vesting 
the  Properties  thereof  in  the  Inventors  and  En- 
gravers, during  the  time  therein  mentioned. 

8 Geo. II.  "Whereas  divers    persons   have  by  their  own  genius 
c.  13.      industry  pains  and   expense   invented  and  engraved  or 

,,       . ,       worked  in  mezzotinto  or  chiaro  oscuro  sets  of  historical 

Preamble. 

See  3  Wills,  and  other  prints  in  hopes  to  have  reaped  the  sole  benefit 
of  their  labors  :  And  whereas  printsellers  and  other  per- 
sons have  of  late,  without  the  consent  of  the  inventors 
designers  and  proprietors  of  such  prints,  frequently  taken 
the  liberty  of  copying  engraving  and  publishing  or  caus- 
ing to  be  copied  engraved  and  published  base  copies  of 
such  works  designs  and  prints  to  the  very  great  prejudice 
and  detriment  of  the  inventors  designers  and  proprietors 
thereof;"  For  remedy  thereof,  and  for  preventing  such 
practices  for  the  future,  may  it  please  your  Majesty  that 
it  may  be  enacted  ;  and  be  it  enacted  by  the  King's  most 
excellent  Majesty,  by  aq|i  with  the  advice  and  consent  of 
the  Lords  Spiritual  and  Temporal  and  Commons  in  this 
present  Parliament  assembled,  and  by  the  authority  of  the 
same,  that  from  and  after  the  twenty-fourth  day  of  June 
which  shall  be  in  the  year  of  our  Lord  one  thousand 
Property  of  seven  hundred  and  thirty-five  every  person  who  shall  in- 
prints  vest-  ^g^^j  ^j^j   design  engrave  etch  or  work  in  mezzotinto  or 

ed  in  the  =>  a 

inventor  for  cfdaro  oscuro,  or  from  his  own  works  and  inventions  shall 
years.  cause  to  be  designed  and  engraved  etched  or  worked  in 

mezzotinto  or  chiaro  oscuro   any  historical  or  other  print 
or  prints  shalt  have  the  sole  right  and   liberty  of  printing 
and  reprinting  the  same  for  the  terra  of  fourteen  years  to 
commence  from  the  day  of  the  first  publishing  thereof. 
Proprietor's  which  shall  be  truly  engraved  with  the  name  of  the  pro- 
afiixed  to      prietor  on  each  plate,  and  printed  on  every  such  print  or 
each  print,  prints ;  and  that  if  any  printseller  or  other  person  what- 
soever, from  and  after  the  said  twenty-fourth  day  of  June 
one  thousand  seven  hundred  and  thirty-five  within  the 


APPENDIX.  y 

time  limited  by  this  Act  shall  engrave  etch  or  work  as  8  Geo.  II. 
aforesaid  or  in  any  other  manner  copy  and  sell  or  cause  to      c-  13. 
be  engraved  etched  or  copied  and  sold  in  the  whole  or  in 
part  by  varying  adding  to  or  diminishing  from  the  main 
design,  or  shall  print  reprint  or  import  for  sale  or  cause 
to  be  printed  reprinted  or   imported   for  sale  any  such 
print  or  prints  or  any  parts  thereof  without  the  consent 
of  the  proprietor  or  proprietors  thereof  first  had  and  ob- 
tained in  writing  signed  by  him  or  them   respectively  in 
the  presence  of  two  or  more  credible  witnesses,  or  know- 
ing the  same  to  be  so  printed  or  reprinted  without   the 
consent  of  the  proprietor  or  proprietors  shall  publish  sell 
or  expose  to  sale  or  otherwise  or  in   any  other  manner 
dispose  of  or  cause  to  be  published  sold  or  exposed  to 
sale  or  otherwise  or  in  any  other  manner  disposed  of  any 
such  print  or  prints  without  such  consent   first  had  and 
obtained  as  aforesaid,  then   such   offender  or   offenders  penalty  on 
shall  forfeit  the  plate  or  plates  on   which  such  print  or  prim  sellers 
prints  are  or  shall  be  copied,  and  all   and  every  sheet  or  pirating  the 
sheets  (being  part  of  or  whereon  such  print  or  prints  are  same. 
or  shall  be  so  copied  or  printed)  to  the  proprietor  or  pro- 
prietors of  such  original   print  or  prints,  who  shall  forth- 
with   destroy    and   damask  the   same ;  and  further  that 
every  such  offender  or  offenders  shall  forfeit  five  shillings 
for  every  print  which  shall   be  found  in  his  her  or  their 
custody  either  printed  or  published  and  exposed  to  sale 
or  otherwise  disposed  of  contrary  to  the  true  intent  and 
meaning   of  this    Act ;  the   one  moiety  thereof  to  the 
King's  most   excellent  JMajesty  his  heirs   and  successors 
and  the  other  moiety  thereof  to  any  person  or  persons 
that  shall  sue  for  the  same,  to  be  recovered  in  any  of  his 
Majesty's  courts  of  record   at  Westminster  by  action   of 
debt  bill  plaint  or  information,  in  which  no  wager  of  law 
essoign  privilege  or  protection  or  more  than  one  impar- 
lance shall  be  allowed. 

II.  Provided  nevertheless.  That  it  shall  and  may  be  Not  to  ex- 
lawful  for  any  person  or  persons  who  shall   hereafter  pur-  chasers  of 

chase  any  plate  or  plates    for  printing  from   the  original  p'^ites.  ffom 
•'   f  .  .  .      thf  original 

proprietors  thereof  to   print   and  reprint  from  the  said  proprietors. 


10 


APPENDIX. 


General 
issue. 


8  Geo.  II.  plates  without  incurring  any  of  the  penalties  in  this  Act 
c.  13.     mentioned. 

III.  And  be  it  further  enacted  by  the  authority  afore- 
said, That  if  any  action  or  suit  shall  be  commenced  or 
brought  against  any  person  or  persons  whatsoever  for 
doing  or  causing  to  be  done  any  thing  in  pursuance  of 
this  Act,  the  same  shall  be  brought  within  the  space  of 
three  months  after  so  doing  ;  and  the  defendant  or  defend- 
ants in  such  action  or  suit  shall  or  may  plead  the  general 
issue  and  give  the  special  matter  in  evidence ;  and  if 
upon  such  action  or  suit  a  verdict  shall  be  given  for  the 
defendant  or  defendants,  or  if  the  plaintiff  or  plaintiffs 
become  nonsuited  or  discontinue  his  her  or  their  action 
or  actions,  then  the  defendant  or  defendants  shall  have 
and  recover  full  costs,  for  the  recovery  whereof  he  shall 
have  the  same  remedy  as  any  other  defendant  or  defend- 
ants in  any  other  case  hath  or  have  by  law. 

IV.  Provided  always  and  be  it  further  enacted  by  the 
authority  aforesaid,  That  if  any  action  or  suit  shall  be 
commenced  or  brought  against  any  person  or  persons  for 
any  offence  committed  against  this  Act,  the  same  shall  be 
brought  within  the  space  of  three  months  after  the  discov- 
ery of  every  such  offence  and  not  afterwards ;  any  thing 
in  this  Act  contained  to  the  contrary  notwithstanding. 

V.  "  And  whereas  John  Pine  of  London  engraver  doth 
propose  to  engrave  and  publish  a  set  of  prints  copied  from 
several  pieces  of  tapestry  in  the  House  of  Lords  and  his 
Majesty's  wardrobe  and  other  drawings  relating  to  the 
Spanish  invasion  in  the  year  of  our  Lord  one  thousand 
five  hundred  and  eighty-eight ;"  Be  it  further  enacted  by 
the  authority  aforesaid,  That  the  said  Joh7i  Pine  shall  be 
entitled  to  the  benefit  of  this  Act  to  all  intents  and  pur- 
poses whatsoever  in  the  same  manner  as  if  the  said  John 
Pine  had  been  the  inventor  and  designer  of  the  said  prints. 

Public  act.  VI.  And  be  it  further  enacted  by  the  authority  afore- 
said. That  this  Act  shall  be  deemed  adjudged  and  taken 
to  be  a  public  Act,  and  be  judicially  taken  notice  of  as 
such  by  all  judges  justices  and  other  persons  whatsoever 
without  specially  pleading  the  same. 


Clause 
relating  to 
J.  Pine. 


APPENDIX.  1 1 

12  Geo.  II.  c.  3G.  —  An  Act  for  prohibiting  the  Im- 
portation of  Books  reprinted  abroad,  and  first 
composed  or  written  and  printed  in  Great  Britain ; 
and  for  repealing  so  much  of  an  Act  made  in  the 
eighth  year  of  the  reign  of  her  late  Majesty  Queen 
Anne,  as  empowers  the  limiting  the  prices  of  Books. 

"  Whereas  tlie  duties  payable  upon  paper  imported  into  jo  q  u 
this  kingdom  to  be  made  use  of  in  printing  greatly  exceed  c.  36. 
the  duties  payable  upon  the  importation  of  printed  books  "-^"^■^"^-^ 
whereby  foreigners  and  others  are  encouraged  to  bring  in 
great  numbers  of  books  originally  printed  and  published 
in  this  kingdom  and  reprinted  abroad,  to  the  diminution 
of  his  Majesty's  revenue  and  the  discouragement  of  the 
trade  and  manunicture  of  this  kingdom  ;"  For  the  pre- 
venting thereof  for  the  future,  May  it  please  your  most 
excellent  Majesty  that  it  may  be  enacted;  and  be  it  en- 
acted by  the  King's  most  excellent  Majesty,  by  and  with 
the  advice  and  consent  of  the  Lords  Spiritual  and  Tem- 
poral and  Commons  in  this  present  Parliament  assembled, 
and  by  the  authority  of  the  same,  that  from  and  after  the 
twenty-ninth  day  of  September  one  thousand  seven  hun- 
dred and  thirty-nine  it  shall  not  be  lawful  for  any  person 
or  persons  whatsoever  to  import  or  bring  into  this  king- 
dom for  sale  any  book  or  books  first  composed  or  written 
and  printed  and  published  in  this  kingdom  and  reprinted 
in  any  other  place  or  country  whatsoever ;  and  if  any 
person  or  persons  shall  import  or  bring  into  this  kingdom 
for  sale  any  printed  book  or  books  so  first  composed  or 
written  and  printed  in  this  kingdom  and  reprinted  in  any 
other  place  or  country  as  aforesaid ;  or  knowing  the  same 
to  be  so  reprinted  or  imported  contrary  to  the  true  intent 
and  meaning  of  this  Act  shall  sell  publish  or  expose  to 
sale  any  such  book  or  books ;  then  every  such  person  or 
persons  so  doing  or  olTending  sliall  forfeit  the  said  book 
or  books  and  all  and  every  sheet  or  sheets  thereof;  and 
the  same  shall  be  forthwith  damasked  and  made  waste 
paper  ;  and  further  that  every  such  offender  or  offenders 


12  APPENDIX. 

12  G.  II.  shall  forfeit  the  sum  of  five  pounds  and  double  the  value  of 
c.  36.  every  book  which  he  or  they  shall  so  import  or  bring  into 
this  kingdom  or  shall  knowingly  sell  publish  or  expose  to 
sale  or  cause  to  be  sold  published  or  exposed  to  sale  con- 
trary to  the  true  intent  and  meaning  of  this  Act ;  the  one 
moiety  thereof  to  the  King's  most  excellent  Majesty  his 
heirs  and  successors  and  the  other  moiety  to  any  person  or 
persons  that  shall  sue  for  the  same ;  to  be  recovered  with 
costs  of  suit  in  any  of  his  Majesty's  courts  of  record 
at  Westminster  by  action  of  debt  bill  plaint  or  informa- 
tion, in  which  no  wager  of  law  essoign  or  protection  or 
more  than  one  imparlance  shall  be  allowed  ;  and  if  the 
offence  be  committed  in  Scotland  to  be  recovered  before 
the  Court  of  Session  there  by  summary  action:  Provided 
that  this  Act  shall  not  extend  to  any  book  that  has  not 
been  printed  or  reprinted  in  this  kingdom  within  twenty 
years  before  the  same  shall  be  imported. 

II.  Provided  always,  That  nothing  in  this  Act  contain- 
ed shall  extend  to  prevent  or  hinder  the  importation  of 
any  book  first  composed  or  written  and  printed  in  this 
kingdom  which  shall  or  may  be  reprinted  abroad  and  in- 
serted among  other  books  or  tracts  to  be  sold  therewith 
in  any  collection  where  the  greatest  part  of  such  collec- 
tion shall  have  been  first  composed  or  written  and  print- 
ed abroad  ;  any  thing  in  this  Act  contained  to  the  con- 
trary notwithstanding. 
Clause  in  f?  HI.  And  be  it  further  enacted  by  the  authority  afore- 
repealeil^^'  ^^'^'  That  SO  much  of  an  Act  made  in  the  eighth  year  of 
the  reign  of  her  late  Majesty  Queen  Anne,  intituled  An 
Act  for  the  Encouragement  of  Learning,  hy  vesting  the 
Copies  of  printed  Books  in  the  Authors  or  Purchasers  of 
such  Copies  during  the  times  therein  7nentioned,  whereby 
it  is  provided  and  enacted,  That  if  any  bookseller  or 
booksellers  printer  or  printers  shall  after  the  said  five  and 
twentieth  day  oi  March  one  thousand  seven  hundred  and 
ten  set  a  price  upon  or  sell  or  expose  to  sale  any  book  or 
books  at  such  a  price  or  rate  as  shall  be  conceived  by  any 
person  or  persons  to  be  high  and  unreasonable ;  it  shall 
and   may  be  lawful   for   any  person  or  persons  to  make 


APPENDIX.  13 

complaint  thereof  to  the  Lord  Archbishop  of  Canterhury  12  G.  II. 
for  the  time  being  the  Lord  Chancellor  or  Lord  Keeper      c.  36. 
of  the  great  seal  of  Great  Britain  for  the  time  being  the 
Lord  Bishop  of  London   for  the   time  being  the    Lord 
Chief  Justice  of  the  Court  of  Queen''s  Bench  the  Lord 
Chief  Justice  of  the  Court  of  Common  Pleas  the  Lord 
Chief  Baron  of  the  Court  of  Exchequer  for  the  time  be- 
ing the  Vice-Chancellors  of  the  two  Universities  for  the 
time  being  in  tliat  part  of  Great.  Britain  called  England 
the  Lord  President  of  the  Sessions  for  the  time  being  the 
Lord  Justice  General   for  the  time  being  the  Lord  Chief 
Baron  of  the  Exchequer  for  the  time  being  the  Rector  of 
the  college  of  Edinhurgh  for  the  time  being  in  that  part 
of  Great  Britain  called  Scotland,  who  or  any  one  of 
them  shall  and  have  hereby  full  power  and  authority  from 
time  to  time  to  send  for  summon  or  call   before  him  or 
them  such   bookseller  or   booksellers  printer  or  printers 
and  to  examine  and  inquire  of  the  reason  of  the  dearness 
and  enhancement  of  the  price  of  value  of  such  book  or 
books  by  him  or  them  so  sold  or  exposed  to  sale ;  and  if 
upon  such  inquiry  and  examination  it  sliall  be  found  that 
the  price  of  such  book  or  books  is  enhanced  or  anyways 
too  high  or  unreasonable,  then  and  in  such  case  the  said 
Archbishop    of   Canterhury    Lord    Chancellor    or    Lord 
Keeper  Bishop  of  London  two  Chief  Justices  Chief  Baron 
VicoChancellors  of  the  Universities  in  that  part  of  Great 
Britain  called  England  and  the  said  Lord  President  of 
the  Sessions  Lord  Justice  General  Lord  Chief  Baron  and 
Rector, of  the  College  o^  Edinlurgh  in  that  part  of  Great 
Britain  called   Scotland,   or  any  one  or  more  of  them  so 
inquiring  and  examining,  have  hereby  full  power  and  au- 
thority to  reform  and  redress  the  same  and  to  limit   and 
settle  the  price   of  every  such  printed   book  and   books 
from  time  to  time  according  to   the  best  of  their  judg- 
ments and  as  to  them  shall   seem  just  and  reasonable ; 
and  in  case  of  alteration  of  the  rate  or  price   from  what 
w'as  set  or  demanded   by  such   bookseller  or   booksellers 
printer  or  printers   to  award   and   order   such  bookseller 
and  booksellers  printer  and  printers  to  pay  all  the  costs 
b 


14  APPENDIX 

12  G.  II.  and  charges  that  the  person  or  persons  so  complaining 
c.  3G.  shall  be  put  unto  by  reason  of  such  complaint  and  of  the 
causing  such  rate  or  price  to  be  so  limited  and  settled  ; 
all  which  shall  be  done  by  the  said  Archbishop  of  Can- 
terlury  Lord  Chancellor  or  Lord  Keeper  Bishop  of^  Lon- 
don two  Chief  Justices  Chief  Baron  Vice  Chancellors  of 
the  two  Universities  in  that  part  of  Great  Britain  called 
England  and  the  said  Lord  President  of  the  Sessions 
Lord  Justice  General  Lord  Chief  Baron  and  Rector  of 
the  college  of  Edinburgh  in  that  part  of  Great  Britain 
called  Scotland,  or  any  one  of  them,  by  writing  under 
their  hands  and  seals,  and  thereof  public  notice  shall  be 
forthwith  given  by  the  said  bookseller  or  booksellers 
printer  or  printers  by  an  advertisement  in  the  Gazette ; 
and  if  any  bookseller  or  booksellers  printer  or  printers 
shall  after  such  settlement  made  of  the  said  rate  and 
price  sell  or  expose  to  sale  any  book  or  books  at  a  higher 
or  greater  price  than  what  shall  have  been  so  limited  and 
settled  as  aforesaid,  then  and  in  every  such  case  such 
bookseller  or  booksellers  printer  or  printers  shall  forfeit 
the  sum  of  five  pounds  for  every  such  book  so  by  him  her 
or  them  sold  or  exposed  to  sale,  one  moiety  thereof  to  the 
Queen's  most  excellent  Majesty  her  heirs  and  successors, 
and  the  other  moiety  to  any  person  or  persons  that  shall 
sue  for  the  same,  to  be  recovered  with  costs  of  suit  in  any 
of  her  Majesty's  courts  of  record  at  Westminster  by  ac- 
tion of  debt  bill  plaint  or  information,  in  which  no  wager 
of  law  essoign  privilege  or  protection  or  more  than  one 
imparlance  shall  be  allowed;  and  every  part  of  the  said 
clause  shall  be  and  the  same  is  hereby  repealed. 
Further  IV.  And  be  it  further  enacted,  That  this  Act  (except 

b°"o^7"p*^  n  ^^  much  thereof  as  repeals  the  before-mentioned  clause 
c.  18,  and  in  the  said  Act  of  the  eighth  year  of  the  reign  of  the  late 
c.  16.  Queen  Anne  relating  to  the  prices  of  books)   shall   con- 

tinue and  be  in  force  from  the  said  twenty-ninth  day  of 
September  one  thousand  seven  hundred  and  thirty-nine 
for  and  during  the  space  of  seven  years,  and  from  thence 
to  the  end  of  the  then  next  session  of  Parliament  and  no 
longer. 


APPENDIX.  15 


7  Geo.  III.  c.  38.  —  An  Act  lo  amend  and  render 
more  efTeclual  an  Act  made  in  tlje  Eighlli  Year 
of  the  Reign  of  King  George  the  Second,  for  En- 
couragement of  the  Arts  of  Designing,  Engrav- 
ing and  Etching  Historical  and  other  Prints  ;  and 
for  vesting  in  and  securing  to  Jane  Hogarth^ 
Widow,  the  Property  in  certain  Prints. 

"  Whereas  an  Act  of  Parliament  passed  in  the  eighth  year  7  q  jjj 

of  the  reign  of  his  late  Majesty  King  George  the  Second,     c.  38. 

intituled  An  Act  for  the  Enccuragcment  of  the  Arts  of  '-^^/'"^-' 

Designing,  Engraving,  and  Etching  Historical  and  other  c.  13°' 

Prints,  hij  vesting  the  Properties  thereof  in  the  Inventors 

and  Engravers  during  the  time  therein  mentioned  has 

been  found  inefiectual  for  the  Purposes  thereby  intended  ;" 

Be  it  enacted  by  tlie  King's   most  excellent  INIajesty,  by 

and  with  the  advice  and  consent  of  the  Lords  Spiritual 

and  Temporal  and  Commons  in  this  present  Parliament 

assembled,  and   by  the  authority  of  the  same,   That  from 

and  after  the   first  day  of  January  one  thousand  seven  P"sinal 

hundred  and  sixty-seven  all  and  every  person  and  persons  &:c.  of    ' 

who  shall   invent  or  design  engrave  etch  or  work  in  mez-  pnnts,  &c. 

"  °         .  intitled  to 

zotinto  or  cniaro  oscuro,  or  from  his  own  work  dcsio-n  or  tlie  licnefu 


invention  shall  cause  or  procure  to  be  designed  engraved  and^pretent 
etched  or  worked  in  mezzotinto  or  chioro  oscuro  any  his-  ^^^>  &c. 
torical  print  or  prints,  or  any  print  or  prints  of  any  por- 
trait conversation  landscape  or  architectural  map  chart 
or  plan  or  any  other  print  or  prints  whatsoever,  shall 
have  and  are  hereby  declared  to  have  the  benefit  and  pro- 
tection of  the  said  Act  and  this  Act  under  the  restrictions 
and  limitations  hereinafter  mentioned. 

II.  And  be  it  further  enacted  by  the  authority  afore- 
said, That  from  and  after  the  said  first  day  of  January 
one  thousand  seven  hundred  and  sixty-seven  all  and  every 
person  and  persons  who  shall  engrave  etch  or  work  in 
mezzotinto  or  chiaro  oscuro,  or  caused  to  be  engraved 
etched  or  worked  any  print  taken  from  any  picture  draw- 
ing model  or  sculpture  either  ancient  or  modern,  shall 


16  APPENDIX. 

7  G.  III.  ^^^'®   ^"^  ^^^   hereby  declared   to  have  the  benefit  and 
c.  38.      protection  of  the  said  Act  and  this  Act  for  the  time  here- 

^■^^"•'"^-^  inafter  mentioned  in  like  manner  as  if  such  print  had 
been  graved  or  drawn  from  the  original  design  of  such 
graver  etcher  or  draftsman,  and  if  any  person  shall  en- 
grave print  and  publish  or  import  for  sale  any  copy  of 
any  such  print  contrary  to  the  true  intent  and  meaning  of 
this  and  the  said  former  Act,  every  such  person  shall  be 
liable  to  the  penalties  contained  in  the  said  Act,  to  be 
recovered  as  therein  and  hereinafter  is  mentioned. 

"  The  sole  right  of  printing  and  reprinting  the  late 
W.  Hogartli's  prints  vested  in  his  widow  and  executrix 
for  twenty  years.  Penalty  of  copying,  &c.  any  of  them 
before  expiration  of  the  term  ;  such  copies  excepted  as 
were  made  and  exposed  to  sale  after  the  term  of  fourteen 
years  for  which  the  said  works  were  first  licensed,  &c." 

V.  And  be  it  further  enacted  by  the  authority  afore- 
said. That  all  and  every  the  penalties  and  penalty  inflict- 
ed by  the  said  Act  and  extended  and  meant  to  be  extend- 
ed to  the  several  cases  comprised  in  this  Act  shall  and 
may  be  sued  for  and  recovered  in  like  manner  and  under 
the  like  restrictions  and  limitations  as  in  and  by  the  said 
Act  is  declared  and  appointed  ;  and  the  plaintiff  or  com- 
mon informer  in  every  such  action  (in  case  such  plaintiff 
or  common  informer  shall  recover  any  of  the  penalties 
incurred  by  this  or  the  said  former  Act)  shall  recover  the 
same  together  with  his  full  costs  of  suit. 

VI.  Provided  also,  That  the  party  prosecuting  shall 
commence  his  prosecution  within  the  space  of  six  calen- 
dar months  after  the  offence  committed. 

The  riglit         VII.  And  be  it  further  enacted  by  the  authority  afore- 

ves^ted'^in     ^^'^'  ^^^^  *^^  ^°'®  '"'S^t  and  liberty  of  printing  and  re- 

the  proprie-  printing  intended  to  be  secured  and  protected  by  the  said 

yea^rs!"^  ^^    former  Act  and  this  Act  shall  be  extended  continued  and 

be  vested  in  the  respective  proprietors  for  the  space  of 

twenty-eight  years,  to  commence  from  the  day  of  the  first 

publishing  of  any  of  the  works  respectively  hereinbefore 

and  in  the  said  former  Act  mentioned. 


APPENDIX.  17 

VIIT.  And  be  it  further  enacted  by  the  authority  afore-  7  G.  III. 
said,  That  if  any  action  or  suit  shall  be  commenced  or      c.  38. 
brought  against  any  person  or  persons  whatsoever  for  do-  j^. 
ing  or  causing  to  be  done  any  thing  in  pursuance  of  this  of  aciioDs. 
Act,  tlie  same  shall   be  brought  within  the  space  of  six 
calendar  months  after  the  fact  committed  ;  and  the  de- 
fendant or  defendants  in  any  of  such   action  or  suit  shall 
or  may  plead  the  general  issue  and  give  the  special  mat-  General 
ter  in  evidence ;  and  if  upon  such  action  or  suit  a  verdict  '^^"^" 
shall  be  given  for  the  defendant  or  defendants,  or  if  the 
plaintiff  or  plaintiffs  become  non-suited  or  discontinue 
his  her  or  their  action  or  actions,  then  the  defendant  or 
defendants  shall  have  and  recover  full  costs;  for  the  re-  Full  costs. 
covery  whereof  he  shall   have  the  same  remedy  as  any 
other  defendant  or  defendants  in  any  other  case  hath  or 
have  by  law. 


18  APPENDIX. 


15  George  III.  c.  53. — An  Act  for  enabling  the 
two  Universities  in  England,  the  four  Universities 
in  Scotland,  and  the  several  Colleges  of  Eton, 
Westminster,  and  Winchester,  to  hold  in  perpetuity 
their  Copyright  in  Books,  given  or  bequeathed  to 
the  said  Universities  and  Colleges  for  the  Ad- 
vancement of  useful  licarning  and  other  purposes 
of  Education  :  and  for  amending  so  much  of  an 
Act  of  the  Eighth  Year  of  the  Reign  of  Queen 
Anne,  as  relates  to  the  Delivery  of  Books  to  the 
Warehouse-keeper  of  the  Stationers'  Company, 
for  the  Use  of  the  several  Libraries  therein  men- 
tioned. 

15  G.  III.  "Whereas  authors  have  heretofore  bequeathed  or  given 
c.  53.      and  may  hereafter  bequeath  or  give  the  copies  of  books 

^"^^^'^'^^  composed  by  them  to  or  in  trust  for  one  of  the  two  uni- 
versities in  that  part  of  Great  Britain  called  England,  or 
to  or  in  trust  for  some  of  the  colleges  or  houses  of  learn- 
ing within  the  same,  or  to  or  in  trust  for  the  four  univer- 
sities in  Scotland,  or  to  or  in  trust  for  the  several  colleges 
of  Eton  Westminster  and  Winchester,  and  in  and  by  their 
several  wills  or  other  instruments  of  donation  have  direct- 
ed or  may  direct  that  the  profits  arising  from  the  printing 
and  reprinting  such  books  shall  be  applied  or  appropria- 
ted as  a  fund  for  the  advancement  of  learning  and  other 
beneficial  purposes  of  education  within  the  said  universi- 
ties and  colleges  aforesaid  :  And  whereas  such  useful 
purposes  will  frequently  be  frustrated  unless  the  sole 
printing  and  reprinting  of  such  books,  the  copies  of 
which  have  been  or  shall  be  so  bequeathed  or  given  as 
aforesaid,  be  preserved  and  secured  to  the  said  universi- 
ties colleges  and  houses  of  learning  respectively  in  perpe- 
tuity :"  May  it  therefore  please  your  Majesty  that  it  may 
be  enacted  ;  and  be  it  enacted  by  the  King's  most  excel- 
lent Majesty,  by  and  with  the  advice  and  consent  of  the 
Lords  Spiritual  and  Temporal  and  Commons  in  this  pre- 


APPENDIX.  19 

sent  Parliament  assembled,   and   by  the  authority  of  the  15 G. III. 

same,  That  the  said  universities  and  colleges  respectively      c.  53. 

shall  at  their  respective  presses  have  for  ever  the  sole  lib-  j. 

erty  of  printing  and   reprinting  all  such  books  as  shall  at  ties,  &c.  to 

any  time  hereafter  have  been  or  (having  not  been  hereto-  gver  the 

fore  published  or  assigned)  shall  at  any  time  hereafter  be  ^"'"^  !]'sht 
,  ,      ,  .  .  01  printing, 

bequeathed  or  otherwise  given  by  the  author  or  authors  &c. 

of  the  same  respectively  or  the  representatives  of  such 
author  or  authors  to  or  in  trust  for  the  said  universities, 
or  to  or  in  trust  for  any  college  or  house  of  learning  with- 
in the  same,  or  to  or  in  trust  for  the  said  four  universities 
in  Scotland,  or  to  or  in  trust  for  the  said  colleges  of  Eton 
Westminster  and  Winchester  or  any  of  them  for  the  pur- 
poses aforesaid,  unless  the  same  shall  have  been  bequeath- 
ed or  given  or  shall  hereafter  be  bequeathed  or  given  for 
any  term  of  years  or  other  limited  term  ;  any  law  or  usage 
to  the  contrary  hereof  in  any  wise  notwithstanding. 

II.  And  it  is  hereby  further  enacted,  That  if  any  book-  Persons 

11  •  1  /•  1      /-        printing  or 

seller  printer  or  other  person  whatsoever  Irom  and  after  selling  such 
the  twenty-fourth  day  of  June  one  thousand   seven  hun-  f  "^feft  thg^' 
dred  and   seventy-five  shall  print  reprint  or  import   or  same,  and 
cause  to  be  printed  reprinted  or  imported  any  such  book  every 
or  books ;  or  knowing  the  same  to  be  so  printed  or  re-  ^^'^^^  '• 
printed  shall  sell  publish  or  expose  to  sale  or  cause  to  be 
sold  published  or  exposed  to  sale  any  such  book  or  books ; 
then  such  offender  or  offenders  shall  forfeit  such  book  or 
books  and  all  and  every  sheet  or  sheets  being  part  of  such 
book  or  books  to  the  university  college  or  house  of  learn- 
ing respectively  to  whom  the  copy  of  such  book  or  books 
shall   have  been   bequeathed  or  given  as  aforesaid,  who 
shall   forthwith  damask   and  make  waste  paper  of  them ; 
and   further   that  such   offender  or  offenders  shall  forfeit 
one  penny  for  every  sheet  which  shall  be  found  in  his  her 
or  their  custody  either  printed  or  printing  published   or 
exposed  to  sale  contrary  to  the  true  intent  and  meaning 
of  this  Act ;  one  moiety  thereof  to  the  King's  most  excel-  one  moiety 

lent  Majesty  his  heirs  and  successors,  and  the  other  moi-  \"  '"*  ^^?" 
•"       ■'  '  jcstv  and 

ety  thereof  to  any  person  or  persons  who  shall  sue  for  the  the  other  to 

same  ;  to  be  recovered  in  any  of  his  Majesty's  courts  of  cu'ioJ'"^"^* 


20 


APPENDIX. 


15  G.  in.  record  at  Westminster  or  in  the  Court  of  Sessions  in 
c.  53.      Scotland  by  action  of  debt  bill  plaint  or  information,  in 
which  no  wager  of  law  essoign  privilege  or  protection  or 
more  than  one  imparlance  shall  be  allowed. 

III.  Provided  nevertheless,  That  nothing  in  this  Act 
shall  extend  to  grant  any  exclusive  right  otherwise  than 
so  long  as  the  books  or  copies  belonging  to  the  said  uni- 
versities or  colleges  are  printed  only  at  their  own  printing 
presses  within  the  said  universities  or  colleges  respec- 
tively and  for  their  sole  benefit  and  advantage  ;  and  that 
if  any  university  or  college  shall  delegate  grant  lease  or 
sell  their  copy  rights  or  exclusive  rights  of  printing  the 
books  hereby  granted  or  any  part  thereof,  or  shall  allow 
permit  or  authorize  any  person  or  persons  or  bodies  cor- 
porate to  print  or  reprint  the  same,  that  then  the  privi- 
leges hereby  granted  are  to  become  void  and  of  no  effect 
in  the  same  manner  as  if  this  Act  had  not  been  made ; 
but  the  said  universities  and  colleges  as  aforesaid  shall 
nevertheless  have  a  right  to  sell  such  copies  so  bequeath- 
ed or  given  as  aforesaid  in  like  manner  as  any  author  or 
authors  now  may  do  under  the  provisions  of  the  statute  of 
the  eighth  year  of  her  Majesty  Q,ueen  Anne. 

IV.  "  And  whereas  many  persons  may  through  igno- 
rance offend  against  this  Act  unless  some  provision  be 
made  whereby  the  property  of  every  such  book  as  is  in- 
tended by  this  Act  to  be  secured  to  the  said  universities 
colleges  and  houses  of  learning  within  the  same  and  to 
the  said  universities  in  Scotland  and  to  the  respective 
colleges  of  Eton  Westminster  and  Winchester  may  be  as- 
certained and  known  ;"  Be  it  therefore  enacted  by  the 
authority  aforesaid,  That  nothing  in  this  Act  contained 
shall  be  construed  to  extend  to  subject  any  bookseller 
printer  or  other  person  whatsoever  to  the  forfeitures  or 
penalties  herein  mentioned  for  or  by  reason  of  the  print- 
ing or  reprinting  importing  or  exposing  to  sale  any  book 
or  books  unless  the  title  to  the  copy  of  such  book  or  books 
which  has  or  have  been  already  bequeathed  or  given  to 
any  of  the  said  universities  or  colleges  aforesaid  be  enter- 
ed in  the  register  book  of  the  Company  of  Stationers  kept 


No  person 
subject  to 
penalties 
unless 
entered  be- 
fore, &c. 


APPENDIX.  21 

for  that  purpose  in  such  manner  as  hath  been  usual  on  or  15  G.  Ill, 
before  the  twenty-fourth  day  of  June  one  thousand  seven      c-  ^3. 
hundred  and  seventy-five ;  and  of  all  and  every  such  book 
or  books  as  may  or  shall  hereafter  be  bequeathed  or  given  Hooks  must 

-  •  ,    ,  ,  .  ,  .  .  ,  .       ,      ^  l>e  entered 

as  atoresaid   be  entered  in  such  register  within  the  space  within  two 
of  two  months  after  any  such  bequest  or  gift   shall   have  IJ]-"^'^ 
come  to  the  knowledge  of  the  vice-chancellors  of  the  said  bequest. 
universities  or  heads  of  houses  and   colleges  of  learning 
or  of  the  principal  of  any  of  the  said  four  universities  re- 
spectively ;   for  every  of  which   entries   so  to  be  made  as 
aforesaid  the  sum  of  sixpence  shall  be  paid  and  no  more; 
which  said  register  book  shall   and  may  at  all  seasonable 
and  convenient  times  be  referred  to  and  inspected  by  any 
bookseller  printer  or  other  person  without  any  fee  or  re- 
ward ;  and  tiie  clerk  of  the  said   Company  of  Stationers 
shall  when  and  as  often  as  thereunto  required  give  a  cer- 
tificate under  his  hand  of  such  entry  or  entries,  and  for 
every  such  certificate  may  take   a  fee  not  exceeding  six 
pence. 

V.  And  be  it  further  enacted,  That  if  the  clerk  of  the  If  clerk 
saidCompany  of  Stationers  for  the  time  being  shall  refuse  mfke^n^ 

or  neglect  to  register  or  make  such  entry  or  entries  or  to  "■>•  ^'^• 

1  °r  .     •  -111       proprietor 

give  such  certificate,  being  thereunto  required  by  the  to  have  like 
agent  of  either  of  the  said  universities  or  colleges  afore-  "^  ^' 
said  lawfully  authorized  for  that  purpose,  then  either  of 
the  said  universities  or  colleges  aforesaid,  being  the  pro- 
prietor of  such  copyright  or  copyrights  as  aforesaid  (no- 
tice being  first  given  of  such  refusal  by  advertisement  in 
the  Gazette)  shall  have  the  like  benefit  as  if  such  entry  or 
entries  certificate  or  certificates  had  been  duly  made  and 
given  ;  and  the  clerk  so  refusing  shall  for  every  such 
offence  forfeit  twenty  pounds  to  the  proprietor  or  propri- 
etors of  every  such  copyright ;  to  be  recovered  in  any  of 
his  Majesty's  courts  of  record  at  West}nhisler  or  in  the 
court  of  Session  in  ScoiJatid  by  action  of  debt  bill  plaint  * 
or  information,  in  which  no  wager  of  law  essoign  privi- 
lege protection  or  more  than  one  imparlance  shall  be 
allowed. 


22  APPENDIX. 

15  G.  III.      VI.  "  And  whereas  in  and  by  an  Act  of  Parliament 
c.  53.      made  in  the  eighth  year  of  the  reign  of  her  late  Majesty 
,  ,  Queen  Anne^  intituled  An  Act  for  the  Encouragement  of 

c.  19.  Learning  hy  vesting  the  Copies  of  j^rinted  Books  in  the 

Authors  or  Purchasers  of  such  Copies  during  -  the  times 
therein  mentioned,  it  is  enacted,  That  nine  copies  of  each 
book  or  books  upon  the  best  paper  that  from  and  after  the 
tenth  day  oi  April  one  thousand  seven  hundred  and  ten 
should  be  printed  and  published  as  therein  mentioned,  or 
reprinted  and  published  with  additions,  shall  by  the 
printer  or  printers  thereof  be  delivered  to  the  ware- 
house-keeper of  the  said  Company  of  Stationers  for  the 
time  being  at  the  hall  of  the  said  Company  before  such 
publication  made,  for  the  use  of  the  royal  library  the 
libraries  of  the  universities  of  Oxford  and  Cambridge  the 
libraries  of  the  four  universities  in  Scotland  the  library 
of  Sion  College  in  London  and  the  library  commonly 
^  called  The  Library  belonging  to  the  Faculty  of  Advocates 

in  Edinburgh  respectively  ;  which  such  warehouse-keeper 
was  thereby  required  within    ten  days  after  demand  by 
the  keepers  of  the  respective  libraries,  or  any  person  or 
persons  by  them  or  any  of  them  authorized  to  demand 
the  said  copy,  to  deliver  the  same  for  the  use  of  the  afore- 
said libraries;   and  if  any  proprietor  bookseller  or  printer 
or  the  said  warehouse-keeper  of  the  said  Company  of  Sta- 
tioners should  not  observe  the  direction  of  the  said  Act 
therein,  that  then  he   and  they  so  making  default  in  not 
delivering  the  said  printed  copies  as  aforesaid  should  for- 
feit as  therein  mentioned  :    And  whereas  the  said  provi- 
sion has  not  proved  effectual   but  the  same   hath  been 
eluded  by  the  entry  only  of  the  title  to  a  single  volume  or 
of  some  part  of  such  book  or  books   so  printed  and  pub- 
No  person    lished  or  reprinted  and  republished  as   aforesaid;"   Beit 
subject  to     enacted   by  the  authority   aforesaid,  That  no  person  or 
the  said  act  persons  whatsoever  shall  be  subject  to  the  penalties  in  the 
UUeWt^he    ^^"^  ^^^  mentioned  for  or   by  reason  of  the   printing  or 
copy  of  the  reprinting  importing  or  exposing  to  sale  any  book  or 
SeyL.  books  without  the  consent  mentioned  in  the  said  Act, 
unless  the  title  to  the  copy  of  the  whole  of  such  book  and 


APPENDIX.  23 

every  volume  thereof  be  entered  in  manner  directed  by  15  G.  III. 
the  said  Act  in  the  register  book  of  the  Company  of  Sta-     c  ."i^. 
tioners,  and  unless  nine  such  copies  of  the  whole  of  such  ^-^^''"^-' 
book  or  books  and  every  volume  thereof  printed  and  pub- 
lished or  reprinted  or  republished  as  therein  mentioned 
shall  be  actually  delivered  to  the  warehouse-keeper  of  the 
said  Company  as  therein  directed   for  the  several  uses  of 
the  several  libraries  in  the  said  Act  mentioned. 

VII.  And  be  it  further  enacted  by  the  authority  afore-  Limitation 
said,  That  if  any  action   or  suit  shall  be  commenced  or  of  actions. 
brought  against  any  person  or  persons  whatsoever  for  do- 
ing or  causing  to  be  done  any  thing  in  pursuance  of  this 

Act,  the  defendants  in  such  action  may  plead  the  general  General 
issue  and  give  the  special  matter  in  evidence  ;  and  if  '^^"'^' 
upon  such  action  a  verdict,  or  if  the  same  shall  be  brought 
in  the  Court  of  Session  in  Scotland  a  judgment  be  given 
for  the  defendant,  or  the  plaintiff  become  nonsuited  and 
discontinue  his  action,  then  the  defendant  shall  have  and 
recover  his  full  costs,  for  which  he  shall  have  the  same 
remedy  as  a  defendant  in  any  case  by  law  hath. 

VIII.  And  be  it  further  enacted  by  the  authority  afore-  public  act. 
said,  That  this  Act  shall  be  adjudged  deemed   and  taken 

to  be  a  public  Act;  and  shall  be  judicially  taken  notice 
of  as  such  by  all  judges  justices  and  other  persons  what- 
soever without  specially  pleading  the  same. 


24  ^  APPENDIX. 


17  George  III.  c.  57. — An  Act  for  more  effectually 
securing  the  Property  of  Prints  to  Inventors  and 
Engravers,  by  enabling  them  to  sue  for  and  re- 
cover Penalties  in  certain  Cases. 

"  Whereas  an  Act  of  Parliament  passed  in  the  eighth 
year  of  the  reign  of  his  late  Majesty  King  George  the 
Second,  intituled  An  Act  for  the  Encouragement  of  the 
Arts  of  Designing,  Engraving,  and  Etching  Historical 
and  other  Prints,  by  vesting  the  Properties  thereof  in  the 
Inventors  and  Engravers  during  the  time  therein  men- 
tioned:  And  whereas  by  an  Act  of  Parliament  passed  in 
the  seventh  year  of  the  reign  of  his  present  Majesty,  for 
amending  and  rendering  more  effectual  the  aforesaid  Act, 
and  for  other  purposes  therein  mentioned,  it  was  (among 
other  things)  enacted,  That  from  and  after  the  first  day 
of  January  one  thousand  seven  hundred  and  sixty-seven 
all  and  every  person  or  persons  who  should  engrave  etch 
or  work  in  mezzotinto  or  chiaro  oscuro,  or  cause  to  be  en- 
graved etched  or  worked  any  print  taken  from  any  pic- 
ture drawing  model  or  sculpture  either  ancient  or  modern, 
should  have  and  were  thereby  declared  to  have  the  benefit 
and  protection  of  the  said  former  Act  and  that  Act  for  the 
term  therein-after  mentioned,  in  like  manner  as  if  such 
print  had  been  graved  or  drawn  from  the  original  design 
of  such  graver  etcher  or  draughtsman  :  And  whereas  the 
said  acts  have  not  effectually  answered  the  purposes  for 
which  they  were  intended,  and  it  is  necessary  for  the  en- 
couragement of  artists  and  for  securing  to  them  the  pro- 
perty of  and  in  their  works  and  for  the  advancement  and 
improvement  of  the  aforesaid  arts  that  such  further  pro- 
visions should  be  made  as  are  herein-after  mentioned  and 
If  any  en-  contained  ;  "  May  it  therefore  please  your  Majesty  that  it 
shair'^eii-*^  may  be  enacted;  and  be  it  enacted  by  the  King's  most 
grave,  &c.    excellent  Maiesty,  by  and  with  the  advice  and  consent  of 

any  print  j       j  '     j  •       ,  . 

without  the  the  Lords  Spiritual  and  Temporal  and  Commons  m  this 
thepTopr^e-  present  Parliament  assembled,  and  by  the  authority  of  the 

tor,  he  shall 

be  liable  to  daniages  and  double  costs. 


APPENDIX. 


25 


same,  That  from  and  after  the  twenty-fourth  day  of  June  17  G.  III. 
one  thousand  seven  hundred  and  seventy-seven  if  any  en-  c.  o7. 
graver  etcher  printseller  or  other  person  shall  within  the 
time  limited  hy  the  aforesaid  Acts,  or  either  of  them,  en- 
grave etch  or  work  or  cause  or  procure  to  be  engraved 
etched  or  worked  in  viczzolinlo  or  chiaro  oscuro,  or  other- 
wise or  in  any  other  manner  copy  in  the  whole  or  in  part 
by  varying  adding  to  or  diminishing  from  the  main  design, 
or  shall  print  reprint  or  import  for  sale  or  cause  or  pro- 
cure to  be  printed  reprinted  or  imported  for  sale,  or 
shall  publish  sell  or  otherwise  dispose  of  or  cause  or  pro- 
cure to  be  published  sold  or  otherwise  disposed  of  any 
copy  or  copies  of  any  historical  print  or  prints  or  any  print 
or  prints  of  any  portrait  conversation  landscape  or  archi- 
tecture map  chart  or  plan,  or  any  other  print  or  prints 
whatsoever  which  hath  or  have  been  or  shall  be  engraved 
etched  drawn  or  designed  in  any  part  of  Great  Britain 
without  the  express  consent  of  the  proprietor  or  proprie- 
tors thereof  first  had  and  obtained  in  writing  signed  by 
him  or  her  or  them  respectively  with  his  her  or  their 
own  hand  or  hands  in  the  presence  of  and  attested  by 
two  or  more  credible  witnesses,  then  every  such  proprie- 
tor or  proprietors  shall  and  may,  by  and  in  a  special  ac- 
tion upon  the  case  to  be  brought  against  the  person  or 
persons  so  offending  recover  such  damages  as  a  jury  on 
the  trial  of  such  action  or  on  the  execution  of  a  writ 
of  inquiry  thereon  shall  give  or  assess  together  with  dou- 
ble costs  of  suit. 


26  ^  APPENDIX. 

38  George  III.  c.  71.  —  An  Act  for  encouraging  the 
Art  of  making  new  Models  and  Casts  of  Busts, 
and  other  thuigs  therein  mentioned.  —  [21st  Jime 
1798.] 

"  Whereas  divers  persons  have  by  their  own  genius 
industry  pains  and  expence  improved  and  brought  the  art 
of  making  new  models  and  casts  of  busts  and  of  statues 
of  human  figures  and  of  animals  to  great  perfection,  in 
hopes  to  have  reaped  the  sole  benefit  of  their  labours  ; 
but  divers  persons  have  (without  the  consent  of  the  pro- 
prietors thereof)  copied  and  made  moulds  from  the  said 
models  and  casts  and  sold  base  copies  and  casts  of  such 
new  models  and  casts  to  the  great  prejudice  and  detri- 
ment of  thg  original  proprietors  and  to  the  discourage- 
ment of  the  art  of  making  such  new  models  and  casts  as 
aforesaid  :  "  For  remedy  whereof  and  for  preventing  such 
practices  for  the  future,  may  it  please  your  Majesty  that 
it  may  be  enacted  ;  and  be  it  enacted  by  the  King's  most 
excellent  Majesty,  by  and  with  the  advice  and  consent  of 
the  Lords  Spiritual  and  Temporal  and  Commons  in  this 
present  Parliament  assembled,  and  by  the  authority  of  the 
The  sole  same.  That  from  and  after  the  passing  of  this  Act  every 
property  of  person  who  shall  make  or  cause  to  be  made  any  new 
inakin^nin-  model  or  Copy  or  cast  made  from  such  new  model  of  any 
delsorcasts  r    i      i  n  p    i 

shall  lie       bust  or  any  part  of  the  human  figure  or  any  statue  of  the 

throri^'hial  '^^^'T^'i"  figure  or  the  head  of  any  animal  or  any  part  of  any 
proprietor  animal  or  the  statue  of  any  animal ;  or  shall  make  or  cause 
to  be  made  any  new  model  copy  or  cast  from  such  new 
model  in  alto  or  basso  relievo  or  any  work  in  which  the 
representation  of  any  human  figure  or  figures  or  the  repre- 
sentation of  any  animal  or  animals  shall  be  introduced,  or 
shall  make  or  cause  to  be  made  any  new  cast  from  nature 
of  any  part  or  parts  of  the  human  figure  or  of  any  part  or 
parts  of  any  animal,  shall  have  the  sole  right  and  pro- 
perty in  every  such  new  model  copy  or  cast,  and  also  in 
every  such  new  model  copy  or  cast  in  alto  or  basso  re- 
lievo or  any  work  as  aforesaid,  and   also  in  every  such 


for  14  years. 


APPENDIX.  ^  27 

new  c;ist   from   nature  as  aforesaid,  for  and  durin^r  tlic  3SG.III. 

term  of  fourteen  years  from  the  time  of  first  publisliing      c.  71. 

tlie  same  :    Provided  always,  That  every  person  who  shall  ^-^"^'^'^'^'^ 

make  or  cause  to  be  made  any  such  new  model  copy  or 

cast  or  any  such  new  model  copy  or  cast  in  alto  or  basso 

relievo  or  any  work  as  aforesaid,  or  any  new   cast  from 

nature  as  aforesaid,  shall  cause  his  or  her  name  to  be  put 

thereon  with  the  date  of  the  pui)lication  before  the  same 

shall  be  publislicd  and  exposed  to  sale. 

II.  And  be  it  further  enacted.  That  if  any  person  shall  Person 

within  the  said  term  of  fourteen  years  make  or  cause  to  ^pL's^of 

be  made  any  copy  or  cast  of  any  such  new  model  copy  or  ^"5'  m"del 
.  Ill  •         1  ,  or   cast 

cast  or  any  such  model  copy  or  cast  in  alto  or  basso  re-  without  the 

lievo  or  any  such  work  as  aforesaid,  or  any  such  new  cast  "^^'■"""yc,""- 

trom  nature  as  aforesaid,  either  by  adding  to  or  diminish-  proprietor, 

ing  from  any  such  new  model  copy  or  cast  or  adding  to  [Trosocuied 

or  diminishing  from  any  such  new  model  copy  or  cast  in  ^°''  ^^'"- 
I.  1  I-  1  1  ;.  .  ,  a»es,  by  a 

alto  or  basso  relievo  or  any  such  work  as  aforesaid,  or  special  ac- 
adding  to  or  diminishing  from  any  such  new  cast  from  "°J»  o"  ^^^^ 
nature  or  shall  cause  or  procure  the  same  to  be  done, 
or  shall  import  any  copy  or  cast  of  such  new  model  copy 
or  cast,  or  copy  or  cast  of  such  new  model  copy  or  cast 
in  alto  or  basso  relievo  or  any  such  work  as  aforesaid,  or 
any  copy  or  cast  of  any  such  new  cast  from  nature  as 
aforesaid  for  sale,  or  shall  sell  or  otherwise  dispose  of  or 
cause  or  procure  to  be  sold  or  exposed  to  sale  or  other- 
wise disposed  of  any  copy  or  cast  of  any  such  new  model 
copy  or  cast,  or  any  copy  or  cast  of  such  new  model  copy 
or  cast  in  alto  or  basso  relievo  or  any  such  work  as  afore- 
said, or  any  copy  or  cast  of  any  such  new  cast  from  na- 
ture as  aforesaid  without  the  express  consent  of  the  pro- 
prietor or  proprietors  thereof  first  had  and  obtained  in 
writing  signed  by  him  her  or  them  respectively  with  his 
her  or  their  hand  or  hands  in  the  presence  of  and  attested 
by  two  or  more  credible  witnesses,  then  and  in  all  or  any 
of  the  cases  aforesaid  every  proprietor  or  proprietors  of 
any  sucli  original  model  copy  or  cast  and  every  proprie- 
tor or  proprietors  of  any  such  original  model  or  copy  or 
cast  in  alto  or  basso  relievo  or  any  such  work  as  aforesaid, 


28  APPENDIX. 

38  G.  III.  or  the  proprietor  or  proprietors  of  any  such  new  cast  from 

c-  '1-      nature  as  aforesaid  respectively,  shall  and  may  by  and  in 

a  special   action  upon  the  cate  to  be  brought  against  the 

person  or  persons  so  offending  recover  such  damages  as 

a  jury  on  the  trial  of  such  action  or  on  the  execution  of  a 

writ  of  enquiry  thereon  shall  give  or  assess  together  with 

full  cost  of  suit. 

Except  III    Provided  nevertheless,  That  no  person  who  shall 

such  per-  _        '     _  _    * 

sons  who     hereafter  purchase  the  right  either  in  any  such   model 
chase  ?lie     ^'^PY  ^''  ^^^^  ^^^  '"  ^"Y  ^"^''  model  copy  or  cast  in  alto  or 

same  of  the  basso  relievo  or  any  such  work   as  aforesaid  or  any  such 
original  „  -    ,  ... 

proprietor,  new  cast  from  nature  of  the  original  proprietor  or  pro- 
prietors thereof  shall  be  subject  to  any  action  for  vending 
or  selling  any  cast  or  copy  from  the  same  ;  any  thing  con- 
tained in  this  Act  to  the  contrary  hereof  notwithstanding. 

Limitation        IV.  Provided   also,  That  all  actions  to  be  brought  as 
of  actions.       /.  •  i  •      ,  r  n- 

aforesaid   agamst  any  person  or  persons  lor'  any  offence 

committed   against  this  Act  shall  be  commenced  within 

six  callendar  months  next  after  the  discovery  of  every 

such  offence  and  not  afterwards. 


APPENDIX.  29 


41  George  III.  c.  107.  —  An  Act  for  the  further  En- 
couragement of  Learning,  in  the  United  Kingdom 
of  Great  Britain  and  Ireland,  by  securing  the 
Copies  and  Copyright  of  printed  Books  to  the 
Authors  of  such  Books,  or  their  Assigns  for  the 
Time  herein  mentioned.  —  [2d  July  1801.] 

"  Whereas    it    is   expedient     that     further    protection  41 G.  III. 
should  be  afforded  to  the  authors  of  books  and  the  pur-     c.  107. 
chasers  of  the  copies  and  copyright  of  the  same  in  the  '^■^""^'''"^^ 
United  Kingdom  of  Great  Britain  and  Ireland;"     May 
it  therefore  please  your  Majesty  that  it  may  be  enacted  ; 
and  be  it  enacted  by  the  King's  most  excellent  Majesty, 
by  and  with  the  advice  and  consent  of  the  Lords  Spir- 
itual and  Temporal  and  Commons  in  this  present  Par- 
liament assembled,   and  by    the   authority  of  the  same. 
That  the  author  of  any  book  or  books  already  composed  Authors  of 
and  not  printed  or  published  and  the  author  of  any  book  \°°ll^  com- 
er books  which  shall  hereafter  be  composed  and  the  as-  posed,  and 

^  ,  ,  ■      1       1     II    1  ii"t   ijrinted 

signee  or  assigns  ot  such  autliors  respectively  shall  have  or  publish- 
the  sole  liberty  of  printing  and  reprinting  of  such  book  ^'  ,^"^  ^^ 
and  books  for  the  term  of  fourteen  years,  to  commence  iicreafier 
from  the  day  of  first  publishing  the  same  and  no  longer  ;  ami'Their 
and  that  if  any  other  bookseller  printer  or  other  person  assigns 
,  .  -    ,  •  1    TT    •.     1  T--       J  •      shall  have 

whosoever  in  any  part  ot  the  said   United  Kingdom  or  in  the  sole 
part  of  the  British  dominions  in  Europe  shall  from  and  "?^'.  "^ 

.  ...  printing 

after   the  passing  of  this  Act  print  reprint  or  import  or  ihcm  for 

shall  cause  to  be  printed  reprinted  or  imported  any  such  years  T" 

book  or  books  without  the  consent  of  the  proprietor  or 

proprietors  of  the  copyright  of  and  in  such  book  or  books  ^^8°  &c.  in 

first  had  and  obtained  in  writing,  signed  in  the  presence  ^"V  Rf'  °^ 

ot  two  or  more  credible  witnesses,  or  knowing  the  same  Kingdom, 

to  be  so  printed  reprinted  or  imported  without  such  con-  J-'^jronean 

sent  of  such  proprietor  or  proprietors  shall  sell  publish  or  dominions, 

expose  to  sale  or  cause  to  be  sold  published  or  exposed  prim,    re- 
print, or  im- 
port, &c.  any  such  book  without  consent  of  the  proprietor,  shall  he  liable  to  an  action 
for  damages,  and  shall  also  forfeit  the  books  to  the  proprietor,  and  3d.  per  sheet. 
Half  to  the  King,  and  half  to  the  informer. 


30  APPENDIX. 

to  sale,  or  shall  have  in  his  her  or  their  possession  for 
sale  any  such  book  or  books  without  such  consent  first 
had  and  obtained  as  aforesaid,  then  such  offender  or 
offenders  shall  be  liable  to  a  special  action  on  the  case  at 
the  suit  of  the  proprietor  or  proprietors  of  the  copyright 
of  such  book  or  books  so  unlawfully  printed  reprinted  or 
imported  or  published  or  exposed  to  sale,  or  being  in  the 
possession  of  such  offender  or  offenders  for  sale  as  afore- 
said contrary  to  the  true  intent  and  meaning  of  this  Act; 
and  every  such  proprietor  and  proprietors  shall  and  may 
by  and  in  such  special  action  upon  the  case  to  be  so 
brought  against  such  offender  or  offenders  in  any  court  of 
record  in  that  part  of  the  said  United  Kingdom  or  of  the 
British  dominions  in  Europe  in  which  the  offence  shall 
be  committed,  recover  such  damages  as  the  jury  on  the 
trial  of  such  action  or  on  the  execution  of  a  writ  of  en- 
quiry thereon  shall  give  or  assess  together  with  double 
costs  of  suit ;  in  which  action  no  wager  of  law  essoign 
privilege  or  protection  nor  more  than  one  imparlance 
shall  be  allowed  ;  and  all  and  every  such  offender  or 
offenders  shall  also  forfeit  such  book  or  books  and  all  and 
every  sheet  and  sheets  being  part  of  such  book  or  books, 
and  shall  deliver  the  same  to  the  proprietor  or  proprietors 
of  the  copyright  of  such  book  or  books  upon  order  of 
any  court  of  record  in  which  any  action  or  suit  in  law  or 
equity  shall  be  commenced  or  prosecuted  by  such  pro- 
prietor or  proprietors,  to  be  made  on  motion  or  petition 
to  the  said  court ;  and  the  said  proprietor  or  proprietors 
shall  forthwith  damask  or  make  waste  paper  of  the  said 
book  or  books  and  sheet  or  sheets  respectively  ;  and  all 
and  every  such  offender  or  offenders  shall  also  forfeit  the 
sum  of  three  pence  for  every  sheet  which  shall  be  found 
in  his  or  their  custody,  either  printed  or  printing  or  pub- 
lished or  exposed  to  sale  contrary  to  the  true  intent  and 
meaning  of  this  Act,  the  one  moiety  thereof  to  the  King's 
most  excellent  Majesty  his  heirs  and  successors,  and  the 
other  moiety  thereof  to  any  person  or  persons  who  shall 
sue  for  the  same  in  any  such  court  of  record  by  action  of 
debt  bill  plaint  or  information,    in   which  no  wager   of 


APPENDIX.  31 

law  essoign  privilege  or  protection  nor  more  than  one  nn-  41  G.  III. 
parlance  shall  be  allowed  :   Provided  always,  That  after     c.  107. 

the  expiration  of  the  said  term  of  fourteen  years  the  riglit  .    . 

of  printing  or  disposing  of  copies  shall  return  to  the  au-  hnvease- 

thors  thereof,  if  they  are  then  living,  for  another  term  of  years' term, 

fourteen  years.  if  living. 

II.  Provided  also  and  be  it  further  enacted,  That  no-  Act  shall 

thing  in  this  Act  contained  shall  extend  or  be  construed  („   i,ooks 

to  e.xtend  to  any  book  or  books  heretofure  composed  and  ^'''.^^.'^.y  , 
J  1  1-  1      1    •  ^1  •  1     TT    •      1  published, 

printed   or   published  ni  any    part   of  the   said    United  norindem- 
Kingdom,  nor  to  exempt  or  indemnify  any  person  or  per-  pe^pJi^gg"^' 
sons  whomsoever  from  or  against  any  penalties  or  actions  under  for- 
to  which  he  she  or  they  shall   or  may  have  become  or  force  at  the 
shall  or  may  be  hereafter  liable  for  or  on  account  of  the  ""'""  ?/. 
unlawlul  printing  reprinting  or  importing  such  book  or  tain  and 
books,  or  the  selling,  publishing  or  exposing    the  same    ^^ 
to  sale  or  the  having  the  same  in   his  or  their  posses- 
sion for  sale  contrary  to  the  laws  and  statutes  in  force 
respecting  the  same  at  the  time  of  the  passing  an  Act  in  39  &  aoc. 
the  session  of  Parliament  of  the  thirty-ninth  and  fortieth 
years  of  the  reign  of  his  present  Majesty,   intituled  An 
Act  for  the  Union  of  Great  Britain  and  Ireland. 

III.  "  And  whereas  authors  have  heretofore  bequeathed  Trinity 
given  or  assigned  and  may  hereafter  bequeath  give  or  as-  DuhUn*^' 
sign  the  copies  or  copyrights  of  and  in  books  composed  ^lifiH  for 
by  them  to  or  in  trust  for  the  college  of  the  Holy  Trinity  the  sole 
of  Dublin ;  and  in  and  by  their  several  wills  or  other  in-  pr^[|Jin°g^ 
struments  have  directed   or   may  direct  that   tlie   profits  ''ocl^'s  giv- 
arising   from  the  printing  or  reprinting  such  books  shall  queathed  to 
be  applied  or  appropriated  as  a  fund  for  the  advancement  iess"ihe° 
of  learning  and  other  beneficial  purposes  of  education  arc  given, 
within  the  college  aforesaid  :    And  whereas  such  useful  limiied^  ^ 
purposes   will    frequently   be   frustrated    unless   the  sole  ^''"•^  ""'v 
right  of  printing  and  reprinting  of  such  books,  the  copies 

of  which  shall  have  been  or  shall  be  so  bequeathed  given 
or  assigned  as  aforesaid,  be  preserved  and  secured  to  the 
said  college  in  perpetuity  :  "  Be  it  therefore  further  en- 
acted, That  the  said  college  shall  at  their  own  printing 
press  within  the  said  college  have  for  ever  the  sole  liberty 


32 


APPENDIX. 


41 G.  III. 

c.  107. 


Penalty  on 
persons 
printing 
such  books 
the  same  as 
under  §  1. 


To  extend 
only   to 
books 
printed  at 
the  college 
press. 


But  the  col- 
lege may 
sell  their 
copyrights. 


of  printing  and  reprinting  all  such  books  as  shall  at  any 
time  hereafter  have  been  or  (not  having  been  heretofore 
published  or  assigned)  shall  at  any  time  hereafter  be  be- 
queathed or  otherwise  given  or  assigned  by  the  author  or 
authors  of  the  same  respectively,  or  the  representatives  of 
such  author  or  authors  to  or  in  trust  for  the  said  college 
for  the  purposes  aforesaid,  unless  the  same  shall  have 
been  bequeathed  given  or  assigned  or  shall  hereafter  be 
bequeathed  given  or  assigned  for  any  term  of  years  or 
any  other  limited  term  ;  any  law  or  usage  to  the  contrary 
thereof  in  any  wise  notwithstanding ;  and  that  if  any 
printer  bookseller  or  other  person  whosoever  shall  from 
and  after  the  passing  of  this  Act  unlawfully  print  reprint 
or  import  or  cause  to  be  printed  reprinted  or  imported, 
or  knowing  the  same  to  be  so  unlawfully  printed  reprint- 
ed or  imported,  shall  sell  publish  or  expose  to  sale  or 
cause  to  be  sold  published  or  exposed  to  sale,  or  have  in 
his  or  their  possession  for  sale  any  such  last-mentioned 
book  or  books,  such  offender  or  offenders  shall  be  subject 
and  liable  to  the  like  actions  penalties  and  forfeitures  as 
are  herein-before  mentioned  and  contained  with  respect  to 
offenders  against  the  copyrights  of  authors  and  their  as- 
signs :  Provided  nevertheless,  That  nothing  in  this  Act 
shall  extend  to  grant  any  exclusive  right  to  the  said  col- 
lege of  the  Holy  Trinity  oi  Dublin  otherwise  than  so  long 
as  the  books  or  copies  belonging  to  the  said  college  are 
and  shall  be  printed  only  at  the  printing  press  of  the  said 
college  within  the  said  college  and  for  the  sole  benefit 
and  advantage  of  the  said  college ;  and  that  if  the  said 
college  shall  delegate  grant  lease  or  sell  the  copyrights 
or  exclusive  rights  of  printing  the  books  hereby  granted 
or  any  part  thereof,  or  shall  allow  permit  or  authorize 
any  person  or  persons  or  bodies  coporate  to  print  or 
reprint  the  same,  then  the  privilege  hereby  granted 
shall  become  void  and  of  no  effect  in  the  same  manner 
as  if  this  Act  had  not  been  made ;  but  the  said  col- 
lege shall  nevertheless  have  a  right  to  sell  such  copies 
so  bequeathed  or  given  as  aforesaid  in  like  manner 
as  any  author   or  authors  can  or  may  lawfully  do  under 


APPENDIX.  33 

the    provisions  of  tliis   Act    or    any    other    Act  now    in  41 G.  III. 
force.  c.  107. 

IV.  Provided   also  and  be  it  further  enacted.  Tliat  no  .V^T^^T!'*^ 

Hookscll- 
bookscller   printer   or   other  person   whosoever   shall    be  ers,  tc. 

liable  to  the  said  penalty  of  three  pence  per  slieet  for  or  tidjlemlie 
by  reason  of  the  printing  reprinting  importing  or  selling  P*^-"^'')'  of 
of  any  such  book  or  books  or  the  having  the  same  in  his  sheet, 
or  their  custody  for  sale  without  the  consent  of  the  pro- 
prietor or  proprietors  of  the  copyright  thereof  as  afore- 
said, unless  before  the  time  of  the  publication  of  such  unless  iho 
book  or  books   by  the  proprietor   or   proprietors  tlicreof  com-right^ 
(other  than  the  said  college)  the  right  and  title  of  such  '"^  entered 
proprietor  or  proprietors  shall  be  duly  entered  in  the  reg-  prieio^r.^c' 

ister   book  of  the   Company  of  Stationers  in  London  in  ^'  ?'?!'*??' 
'       ■'  ers'  Hall, 

such  manner  as  hath  been  usually  heretofore  done  by  the  London; 
proprietors  of  copies  and   copyrights  in  Great  Britain ;  consent'  oi 
nor  if  the  consent  of  such  proprietor   or  proprietors  for  ^^^  proprie- 

,  •      •  •      •         •  •  ,,-,,,  tor  be  so  en- 

tne  prniting  reprmting  importnig  or  sellmg  such  book  or  tercd. 
books  shall  be  in  like  manner  entered  ;  nor  unless  the 
right  and  title  of  the  said  college  to  the  copyright  of  such 
book  or  books  as  has  or  have  been  already  bequeathed 
given  or  assigned  to  the  said  college  be  entered  in  the 
said  register  book  before  the  twenty-ninth  day  of  Septem- 
ber one  thousand  eight  hundred  and  one,  and  of  all  and 
every  such  book  or  books  as  may  or  shall  hereafter  be 
bequeathed  given  or  assigned  as  aforesaid  be  entered  in 
the  said  register  bqok  within  the  space  of  two  months 
after  any  such  bequest  gift  or  assignment  shall  have  come 
to  the  knowledge  of  the  provost  of  the  said  college  ;  for 
every  of  which  several  entries  six  ponce  shall  be  paid  and 
no  more;  whicli  said  register  book  shall  at  all  times  be 
kept  at  the  hall  of  the  said  Company  and  shall  and  may 
at  all  seasonable  and  convenient  times  be  resorted  to  and 
inspected  by  any  bookseller  printer  or  other  person  for 
the  purposes  before  mentioned  without  any  fee  or  reward ; 
and  the  clerk  of  the  said  Company  of  Stationers  shall  Clerk  of 
when  and  as  often  as  thereto  required   give  a  certificate  „>•    shall"* 

give  certifi- 
cates of  entries,  and  make  a  half-yearly  list  of  the 
books  so  entered  for  the  use  of  'Trinity  College. 


34  APPENDIX. 

41  G.  III.  under  his  hand  of  such  entry  or  entries  and  for  every 
c.  107.  such  certificate  may  take  a  fee  not  exceeding  sixpence; 
and  the  said  clerk  shall  also  without  fee  or  reward  within 
fifteen  days  next  after  the  thirty-first  day  of  Dccemher 
and  the  thirtieth  day  o^  June  in  each  and  every  year  make 
or  cause  to  be  made  for  the  use  of  the  said  college  a  list 
of  the  titles  of  all  such  books,  the  copyright  to  which 
shall  have  been  so  entered  in  the  course  of  the  half  year 
immediately  preceding  the  said  thirty-first  day  of  Decern- 
ber  and  the  thirtieth  day  of  Jitne  respectively,  and  shall 
upon  demand  deliver  the  said  lists  or  cause  the  same 
to  be  delivered  to  any  person  or  persons  duly  autho- 
rized to  receive  the  same  for  and  on  behalf  of  the  said 
college. 

If  the  clerk       V.  Provided   also   and  be  it  further  enacted.  That  if 
rci US6S   to 

make  en-    the  clerk  of  the  said  Company  of  Stationers  for  the  time 
tries,  &c.     being  shall  refuse  or  neglect  to  register  or  make  such  en- 
try or  entries  or  to  give  such  certificate  or  certificates 
being  thereupon   respectively  required  by  the  author  or 
authors  proprietor  or  proprietors  of  such  copies  or  copy- 
rights, or  by  the  person  or  persons  to  whom  such  con- 
sent shall  be  given  or  by  some  person  on  his  or  their 
behalf  in  the  presence  of  two  or  more  credible  witnesses, 
Parties         then  such  party  or  parties  so  refused,  notice  being  first 
mnfcf '  in     *^"^y  g'ven  by  advertisement  in  the  London  Gazette,  shall 
the  London  have  the  like  benefit  as  if  such  entry  or  entries  certificate 

Gazette 

and  the       or  certificates  had  been  duly  made  and  given  ;    and  the 

forfeir2o/  ^^^^^^  ^o  refusing  shall  for  any  such  offence  forfeit  to 
the  author  or  proprietor  of  such  copy  or  copies  or  to  the 
person  or  persons  to  whom  such  consent  shall  be  given 
the  sum  of  twenty  pounds  ;  or  if  the  said  clerk  shall  re- 
fuse or  neglect  to  make  the  list  aforesaid  or  to  deliver 
the  same  to  any  person  duly  authorized  to  demand  the 
same  on  behalf  of  the  said  college  the  said  clerk  shall 
also  forfeit  to  the  said  college  the  like  sum  of  twenty 
pounds;  which  said  respective  penalties  shall  and  may 
be  recovered  in  any  of  his  Majesty's  courts  of  record 
in  the  said  United  Kingdom  by  action  of  debt  bill 
plaint  or  information,  in  which  no  wager  of  law  essoign 


APPENDIX.  .  35 

or  protection    nor    more   th;in   one   imparlance   shall    he  41  G.  III. 
allowed.  c.  107. 

VI.  Provided  also  and  he  it  further  enacted,  That  from  ^■^'^'v'"^-' 
and  after  trie  passmg  of  this  Act,  in  addition  to  the  nine  tional  co- 
copies  now  required  by  law  to  he  delivered  to  the  ware-  P'^^". 
house-keeper  of  the  said  Company  of  Stationers  of  each  lered  at 
and  every  book  and  books  whicli  shall  be  entered  in  the  \i.^\\    ^hM 
register  book  of  the  said  Company,  one  other  copy  shall  I'^f'^hver- 
be  in  like  manner  delivered   for  the  use  of  the  library  of  ihc  use  of 
the  said  college  of  the  Holy  Trinity  of  Dullin,  and  also  Jl'^fs^'iP" 
one  other  copy  for  the  use  of  the  library  of  the  society  of  ''riniiy 
the  King's  Inns  Dublin,  by  the  printer  or  printers  of  all  aiul   the 

and   every  such   book   and   books  as   shall   hereafter  be  j^'"a's 

•'  Inus,  Dub- 

printed    and    published    and    the   title  to  the    copyright  lia. 

whereof  shall  be  entered  in  the  said  register  book  of 
the  said  Company;  and  that  the  said  college  and  the  said 
society  shall  have  the  like  remedies  for  enfi>rcing  the  de- 
livery of  the  said  copies  ;  and  that  all  proprietors  book- 
sellers and  printers  and  the  warehouse-keeper  of  the  said 
Company  shall  be  liable  to  the  like  penalties  for  making 
default  in  delivering  the  said  copies  for  the  use  of  the 
said  college  and  the  said  society  as  are  now  in  force 
with  respect  to  the  delivering  or  making  default  in  de- 
livering the  nine  copies  now  required  by  law  to  be  de- 
livered in  manner  aforesaid. 

VII.  And  be  it   further  enacted,  That  from  and  after  No  person 

the  passing  of  this  Act  it  shall  not  be  lawful  for  any  per-  p,,^^  iJ,"!!,' 

son  or   person  whomsoever  to  import  or  brins  into  any  ^">'  P'"''  °^ 
/-     1       TT    •      1    T--        1  ,'   r^  -n    .      '  ,     T        the  United 

part  ot   the  United   Kingdom  of  Ureat  lintain  and  Ire-  Kingdom 

land  for  sale  any  printed  book  or  books  first  composed  ^    t"  fi^"t^ 

written  or  printed   and  published  in  any  part  of  the  said  composed, 

United   Kingdom   and  reprinted  in  any  other,  country  or  ihe  United 

place  whatsoever:   and  if  any  person  or  persons  shall  im-  Kini^dom, 

port  or  bring  or  cause  to  be  imported  or  brought  for  sale  ed   else- 

any  such  printed  book  or  books  into  any  part  of  the  said  ^^"'^'^^• 

United  Kingdom  contrary  to  tiie  true  intent  and  meaning 

of  this  Act,  or  shall  knowingly  sell  publish  or  expose  to 

sale  or  have  in  his  or  their  ])ossession  for  sale  any  such 

book  or  books,  then  every  such   book   or  books  shall  be 


36  .  APPENDIX. 

41  G.  III.  forfeited  and  shall  and  may  be  seized  by  any  officer  or 
c.  107.  officers  of  Customs  or  Excise  and  the  same  shall  be  forth- 
.,  ■  ^  with  made  waste  paper ;  and  all  and  every  person  and 
importing,  persons  so  offending,  being  duly  convicted  thereof,  shall 
keepin''  for  ^^^^  ^^^  every  such  offisnce  forfeit  the  sum  of  ten  pounds 
sale   any      and  double  the   value  of  each   and  every  copy  of  such 

such  books,   ,        ,  ,        ,  1  •    1     1  1  1  111 

forfeiture      booK   or    booKS  which  he  she  or  they  shall  so  import  or 

*^^'^^°m^"'^  bring  or  cause  to  be  imported  or  brought  into  any  part  of 

and  double  the  said  United  Kingdom,  or  shall  knowingly  sell  publish 

the  value.    ^^  expose  to  sale  or  shall   cause  to  be  sold  published  or 

exposed  to  sale,  or  shall  have  in  his  or  their  possession 

for  sale  contrary  to  the  true  intent  and   meaning  of  this 

Books  may  Act ;    and   the   commissioners  of  Customs  in   England 

by  officers    Scotland  and  Ireland  respectively  (in  case  the  same  shall 

of  customs    be  seized  by  any  officer  or  officers  of  Customs),  and  the 
or  CXC1S6  J        'f  / 

who  shii'll    commissioners  of  Excise  in  England   Scotland  and  Ire- 
be  reward-  ^^^^  respectively  (in   case  the  same  shall  be  seized  by 
any  officer  or  officers   of  Excise)   shall  also  reward  the 
officer  or  officers  who  shall  seize  any  books  which  shall 
be  so  made  waste  paper  of  with  such  sum  or  sums  of 
money  as  they  the   said  respective  commissioners  shall 
think  fit,  not  exceeding  the  value  of  such  books;    such 
reward  respectively   to  be  paid  by   the  said  respective 
commissioners  out  of  any  money  in  their  hands  respect- 
ively 'arising   from  the  duties   of  Customs   and   Excise : 
Exceptions   Provided,  that   no  person   or  persons  shall  be  liable  to 
notliavinff    ^"y  ^^  ^^^  last-mentioned  penalties  or  forfeitures  for  or  by 
been  print-  reason  or  means  of  the  importation  of  any  book  or  books 
United         Avliich  has  not  been  printed  or  reprinted  in  some  part  of 

Kingdom      j]-,g  gj^jj  United  Kincrdom  within  twenty  years  next  before 
lor20years,  ,  °  ■'  •' 

&c.  the  same  shall  be  imported,  or  of  any  book  or  books  re- 

printed abroad  and  inserted  among  other  books  or  tracts 
to  be  sold  therewith  in  any  collection  where  the  greatest 
part  of  such  collection  shall  have  been  first  composed  or 
written  abroad. 

General  is-  VIII.  And  be  it  further  enacted.  That  if  any  action  or 
suit  shall  be  commenced  or  brought  against  any  person 
or  persons  whomsoever  for  doing  or  causing  to  be  done 
any  thing  in  pursuance  of  this  Act,  the   defendants  in 


sue. 


APPENDIX. 


37 


such  action  may  plead  tlic  general  issue  and  give  the  41  G.  III. 
special   matter  in  evidence;   and  if  upon   such  action  a     c.  107. 
verdict  shall  be  given  for  the  defendant,  or  the  plaintiff 
become  non-suited  or  discontinue  his  action,  then  the  de- 
fendant shall  have  and  recover  his  full  costs,  for  which 
he   shall    have   the   same   remedy  as  a  defendant  in  any 

case  by  law  hath  ;    and  that  all  actions  suits  bills  indict-  Limiiation 
•'        .  .  -  „  1  1     11  i_  "t  actions 

ments  or  informations  for  any  offence  that  shall  be  com-  under  this 
mitted  against  this  Act  shall  be  brought  sued  and  com-  ''*^'  f."' 
menced  within  six  months  next  after  such  offence  com- 
mitted, or  else  the  same  shall  be  void  and  of  none  effect. 


38  APPENDIX. 


54  Geo.  III.  c.  56.  —  An  Act  to  amend  and  render 
more  effectual  an  Act  of  his  present  Majesty,  for 
encouraging  the  Art  of  making  new  Models  and 
Casts  of  Busts,  and  other  Things  therein  mention- 
ed ;  and  for  giving  further  Encouragement  to  such 
Arts.  —  [ISth  May  1814.] 

54  G.  III.  "  Whereas  by  an  Act  passed  in  the  thirty-eighth  year  of 
c.  56.      the  reign  of  his  present  Majesty,  intituled,  Ari  Act  for 
^-^'^-y^*^  encouraging  the  Art.  of  making  new  Models  and  Casts  of 
c.  1,  §  1.       Busts,  and  other  Things  therein  menlioned  ;  the  sole  right 
and  property  thereof  were  vested  in  the  original  proprietors 
for  a  time  therein  specified  :  And  whereas  the  provisions 
of  the  said  Act  having  been  found  ineffectual  for  the  pur- 
poses thereby  intended,  it  is  expedient  to  amend  the  same 
and  to  make  other  provisions  and  regulations  for  the  en- 
couragement of  artists   and  to  secure  to  them  the  profits 
of  and  in  their  works  and  for  the  advancement  of  the  said 
arts  :"  May  it  therefore  please  your  Majesty  that  it  may 
be  enacted  ;  and  be  it  enacted  by  the  King's  most  excel- 
lent Majesty,  by  and   with   the  advice  and  consent  of  the 
Lords  Spiritual  and  Temporal  and  Commons  in  this  pre- 
sent Parliament  assembled,   and  by  the   authority  of  the 
Sole  ri-^ht     same,  That  from  and  after  the  passing  of  tliis  Act  every 
and  proper-  person  or  persons  who  shall   make  or  cause  to  he  made 

ly  ofall  1       •    ■      1  1  11  » 

new  and  any  new  and  origmal  sculpture  or  model  or  copy  or  cast 
original       ^f  ^|jg  human  figure  or  human  figures  or  of  any  bust  or 

sculpture,  =  ='  r-  i     i     j 

models,  busts,  or  of  any  part  or  parts  of  the  human  figure  clothed 
castrve"st-  '"  drapery  or  otherwise,  or  of  any  animal  or  animals  or 
ed  in  pro-  of  any  part  or  parts  of  any  animal  combined  with  the  hu- 
prietors  lor  ^  '  ^  ■  r  i  •  i     ■ 

14  years,  man  figure  or  Otherwise,  or  oi  any  subject  being  matter 
of  invention  in  sculpture  or  of  any  alto  or  basso-relievo 
representing  any  of  the  matters  or  things  herein-before 
mentioned,  or  any  cast  from  nature  of  the  human  figure 
or  of  any  part  or  parts  of  the  human  figure,  or  of  any  cast 
from  nature  of  any  animal  or  of  any  part  or  parts  of 
any  animal,  or  of  any  such  subject  containing  or  repre- 
senting any  of  the  matters  and  things  herein-before  men- 


APPENDIX.  39 

tioncd,  whether  separate  or  combined,  shall  have  the  sole  54  G.  III. 
right  and  property  of  all  and  in  every  such  new  and  ori-  c.  56. 
ginal  sculpture  model  copy  and  cast  of  the  human  figure 
and  human  figures  and  of  all  and  in  every  such  bust  or 
busts  and  of  all  and  in  every  such  part  or  parts  of  the 
human  figure  clothed  in  drapery  or  otherwise,  and  of  all 
and  in  every  such  new  and  original  sculpture  model  copy 
and  cast  representing  any  animal  or  animals,  and  of  all 
and  in  every  such  work  representing  any  part  or  parts  of 
any  animal  combined  with  the  human  figure  or  otherwise, 
and  of  all  and  in  every  such  new  and  original  sculpture 
model  copy  and  cast  of  any  subject  being  matter  of  in- 
vention in  sculpture,  and  of  all  and  in  every  such  new 
and  original  sculpture  model  copy  and  cast  in  alto  or 
basso-relievo  representing  any  of  the  matters  or  things 
herein-before  mentioned  and  of  every  such  cast  from  na- 
ture, for  the  term  of  fourteen  years  from  first  putting 
forth  or  publishing  the  same  ;  provided,  in  all  and  every 
case,  the  proprietor  or  proprietors  do  cause  his  her  or 
their  name  or  names  with  the  date  to  be  put  on  all  and 
every  such  new  and  original  sculpture  model  copy  or  cast 
and  on  every  such  cast  from  nature  before  the  same  shall  a„j  jj,Jg 
be  put  forth  or  published.*  aflixed. 

II.  And  be  it  further  enacted.  That  the  sole  right  and  Works 
property  of  all  works  which  have  been  put  forth  or  pub-  uUdc'r  Act 
lished  under  the  protection  of  the  said  recited  Act  shall  nested  in 

I  111  1  11  proprietors 

be  extended   continued  to  and   vested  in  the  respective  for  14  years. 

proprietors  thereof  for  the  term  of  fourteen  years  to  com- 
mence from  the  date  when  such  last-mentioned  works 
respectively  were  put  forth  or  published. 

III.  And  be  it  further  enacted,  That  if  any  person  or  Putting 
persons  shall  within  such  term  of  fourteen  years  make  or  ^"^'^  P'' 

'  •'  rated  copies 

import  or  cause  to  be  made  or  imported  or  exposed  to  or  pirated 
sale  or  otherwise  disposed  of  any  pirated  copy  or  pirated  seemed™ 
cast  of  any  such  new  and  original  sculpture  or  model  or 
copy  or  cast  of  the  human  figure  or  human  figures  or  of 
any  such  bust  or  busts,  or  of  any  such  part  or  parts  of 
the  human  human  figure  clothed  in  drapery  or  otherwise, 
or  of  any  such  work  of  any  animal  or  animals  or  of  any 


40 


APPENDIX. 


Damages. 

Double 

costs. 

Purchasers 
of  copyright 
secured  in 
the  same. 


Limitation 
of  actions. 


such  part  or  parts  of  any  animal  or  animals  combined 
with  the  human  figure  or  otherwise,  or  of  any  such  sub- 
ject being  matter  of  invention  in  sculpture,  or  of  any  such 
alto  or  basso-relievo  representing  any  of  the  matters  or 
things  herein-before  mentioned,  or  of  any  such  cast  from 
nature  as  aforesaid,  whether  such  pirated  copy  or  pirated 
cast  be  produced  by  moulding  or  copying  from  or  imita- 
ting in  any  way  any  of  the  matters  or  things  put  forth  or 
published  under  the  protection  of  this  Act,  or  of  any 
works  which  have  been  put  forth  or  published  under  the 
protection  of  the  said  recited  Act,  the  right  and  property 
whereof  is  and  are  secured  extended  and  protected  by 
this  Act  in  any  of  the  cases  as  aforesaid,  to  the  detriment 
damage  or  loss  of  the  original  or  respective  proprietor  or 
proprietors  of  any  such  works  so  pirated  ;  then  and  in  all 
such  cases  the  said  proprietor  or  proprietors  or  their  as- 
signee or  assignees  shall  and  may,  by  and  in  a  special 
action  upon  the  case  to  be  brought  against  the  person  or 
persons  so  offending,  receive  such  damages  as  a  jury  on  a 
trial  of  such  action  shall  give  or  assess  together  with 
double  costs  of  suit. 

IV.  Provided  nevertheless,  That  no  person  or  persons 
who  shall  or  may  hereafter  purchase  the  right  or  property 
of  any  new  and  original  sculpture  or  model  or  copy  or 
cast,  or  of  any  cast  from  nature  or  of  any  of  the  matters 
and  things  published  under  or  protected  by  virtue  of  this 
Act,  of  the  proprietor  or  proprietors  expressed  in  a  deed 
in  writing  signed  by  him  her  or  them  respectively  with 
his  her  or  their  own  hand  or  hands  in  the  presence  of  and 
attested  by  two  or  more  credible  witnesses,  shall  be  sub- 
ject to  any  action  for  copying  or  casting  or  vending  the 
same ;  any  thing  contained  in  this  Act  to  the  contrary 
notwithstanding. 

V.  Provided  always  and  be  it  further  enacted,  That  all 
actions  to  be  brought  as  aforesaid  against  any  person  or 
persons  for  any  offence  committed  against  this  Act  shall 
be  commenced  within  six  calendar  months  next  after  the 
discovery  of  every  such  offence  and  not  afterwards. 


APPENDIX.  41 

VI.  Provided  always  and  be  it  further  enacted,  That  54  G.  Ill 
from  and  immediately  after  the  expiration  of  the  said  term      c.  5G. 
of  fourteen  years  the  sole  right  of  making  and  disposing  of  ^jj^ionai 
such  new  and  original  sculpture  or  model  or  copy  or  cast  term  of  14 
of  any  of  the  matters  or  things  herein-before  mentioned  f..j^^,.  maker 
shall  return  to  the  person  or  persons  who  originally  made  cf'jn^'nal 

'  ^  o  J  sculpture, 

or  caused  to  be  made  the  same,  if  he  or  they  shall  be  then  &c.  shall 
living,  for  the  further  term  of  fourteen  years,  excepting  in  "^  '^'"" 
the  case  or  cases  where  such  person  or  persons  shall  by 
sale  or  otherwise  have  divested  himself  herself  or  them- 
selves of  such  right  of  making  or  disposing  of  any  new 
and  original  sculpture  or  model  or  copy  or  cast  of  any  of 
the  matters  or  things  herein-before  mentioned  previous  to 
the  passing  of  this  Act. 


i» 


42  APPENDIX. 


54  George  III.  c.  156.  —  An  Act  to  amend  the  sev- 
eral Acts  for  the  Encouragement  of  Learning,  by 
secnring  the  Copies  and  Copyright  of  printed 
Books  to  the  Authors  of  such  Books,  or  their  As- 
signs.—[29//t  July  1814.] 

"  Whereas  by  an  Act  made  in  the  eighth  year  of  the 
reign  of  her  late  Majesty  Queen  Anne,  intituled  An  Act 
'  for  the  Encouragement  ofLearnmg^  hy  vesting  the  Copies 
of  printed  Books  in  the  Authors  or  Purchasers  of  such 
Copies  during  the  times  therein  mentioned,  it  was  among 
other  things  provided  and  enacted,  That  nine  copies  of 
each  book  or  books  upon  the  best  paper  that  from  and 
after  the  said  tenth  day  o^  April  one  thousand  seven  hun- 
dred and  ten  should  be  printed  and  published  as  in  the 
said  Act  mentioned,  or  reprinted  and  published  with 
additions,  should  by  the  printer  and  printers  thereof  be 
delivered  to  the  warehouse-keeper  of  the  Company  of 
Stationers  for  the  time  being  at  the  hall  of  the  said  Com- 
pany before  such  publication  made  for  the  use  of  the 
royal  library,  the  libraries  of  the  universities  of  Oxford 
and  Cambridge,  the  libraries  of  the  four  universities  in 
Scotland  the  library  of  Sion  College  in  London,  and 
library  of  the  Faculty  of  Advocates  at  Edinhurgh  ;  which 
said  warehouse-keeper  is  by  the  said  Act  required  to  de- 
liver such  copies  for  the  use  of  the  said  libraries ;  and 
that  if  any  proprietor  bookseller  or  printer  or  the  said 
warehouse-keeper  should  not  observe  the  directions  of  the 
said  Act  therein,  that  then  he  or  they  so  making  default 
in  not  delivering  the  said  printed  copies  should  forfeit  be- 
sides the  value  of  the  said  printed  copies  the  sum  of  five 
41  G.  III.  pounds  for  every  copy  not  so  delivered  :  And  whereas  by 
^^in^  s  an  Act  made  in  the  forty-first  year  of  the  reign  of  his  pre- 
sent Majesty,  intituled  An  Act  for  the  further  Encourage- 
ment of  Learning  in  the  United  Kingdom  of  Great  Brit- 
ain and  Ireland,  hy  securing  the  Copies  and  Copyright  of 
printed  Books  to  the  Authors  of  such  Books  or  their  as- 
signs for  the  time  herein  mentioned,  it  is  amongst  other 


APPENDIX.  43 

things  provided  and  enacted,  That  in  addition  to  the  nine  o4G.III. 
copies  required  by  law  to  be  delivered  to  the  warehouse-  c-  156. 
keeper  of  the  said  Company  of  Stationers  of  each  and 
every  book  and  books  which  sliall  be  entered  in  the  re- 
gister books  of  the  said  company  two  other  copies  shall  in 
like  manner  be  delivered  for  the  use  of  the  library  of  the 
college  of  the  Holy  Trinity  and  the  library  of  the  society 
of  the  King's  Inns  in  Dublin  by  the  printer  and  printers 
of  all  and  every  such  book  and  books  as  should  thereafter 
be  printed  and  published  and  the  title  of  the  copyright 
whereof  should  be  entered  in  the  said  register  book  of 
the  said  Company  :  And  whereas  it  is  expedient  that  co- 
pies of  books  hereafter  printed  or  published  should  be 
delivered  to  the  libraries  herein-after  mentioned  with  the 
modifications  that  sliall  be  provided  by  this  Act ;"  May 
it  therefore  please  your  Majesty  that  it  may  be  enacted  ; 
and  be  it  enacted  by  the  King's  most  excellent  Majesty, 
by  and  with  the  advice  and  consent  of  the  Lords  Spiritual 
and  Temporal  and  Commons  in  this  present  Parliament 
assembled,  and  by  the  authority  of  the  same,  That  so 
much  of  the  said  several  recited  Acts  of  the  eighth  year 
of  Queen  Anne  and  of  the  forty-first  year  of  his  present 
Majesty  as  re<juires  that  any  copy  or  copies  of  any  book 
or  books  which  shall  be  printed  or  published,  or  reprinted 
and  published  with  additions,  shall  be  delivered  by  the 
printer  or  printers  thereof  to  the  warehouse-keeper  of  the 
said  Company  of  Stationers  for  the  use  of  any  of  the 
libraries  in  the  said  Act  mentioned  and  as  requires  the 
delivery  of  the  said  copies  by  the  said  warehouse-keeper 
for  the  use  of  the  said  libraries,  and  as  imposes  any  pen- 
alty on  such  printer  or  warehouse-keeper  for  not  deliver- 
ing the  said  copies  shall  be  and  the  same  is  hereby  re-  repealed, 
pealed. 

II.  And  be  it  further  enacted,  That  eleven  printed  Fleven 

11  1       c  I  pniitcd 

copies  of  the  whole  of  every  book   and  ot  every  volume  copies  de- 
thereof  upon  the  paper  upon  which  the  largest  number  or  jjf,'^^!,,/'" 
impression  of  such  book  sliall  be  printed  for  sale,  together  within  V2 
with  all  maps  and  prints  belonging  thereto,  which  from  ^(^.j  pui,ii. 
and   after   the   passinor  of  this  Act  shall   be  printed  and  cation,  for 

•^  =>  '  use  ol  pub- 

liclibraries. 


44 


APPENDIX. 


54  G.  III.  published  on  demand  thereof  being  made  in  writing  to  or 
c.  156.     left  at  the  place  of  abode  of  the  publisher  or  publishers 
thereof  at  any  time  within  twelve  months  next  after  the 
publication  thereof  under  the  hand  of  the  warehouse- 
keeper  of  the  Company  of  Stationers  or  the  librarian  or 
other  person  thereto  authorized  by  the  persons  or  body 
politic  and  corporate  proprietors  or  managers  of  the  libra- 
ries following,  videlicet  the  British  Museum  Sion  College 
the  Bodleian    Library   at   Oxford   the  Public  Library 
at  Cambridge  the  library  of  the  Faculty  of  Advocates  at 
Edinburgh,  the  libraries  of  the  four  universities  of  Scot- 
land  Trinity  College  Library  and  the  King's  Inns  Li- 
brary at  Dublin,  or  so  many  of  such  eleven  copies  as 
shall  be  respectively  demanded  on  behalf  of  such  libraries 
respectively,  shall   be  delivered  by  the  publisher  or  pub- 
lishers thereof  respectively  within  one  month  after  de- 
mand made  thereof  in  writing  as  aforesaid  to  the  ware- 
house-keeper of  the  said  Company  of  Stationers  for  the 
time   being ;    which  copies  the  said    warehouse-keeper 
shall  and  he  is  hereby  required  to  receive  at  the  hall  of 
the  said  Company  for  the  use  of  the  library  for  which 
such  demand  shall  be  made  within  such  twelve  months  as 
aforesaid ;  and  the  said  warehouse-keeper  is  hereby  re- 
quired within  one  month  after  any  such  book  or  volume 
shall  be  so  delivered  to  him  as  aforesaid  to  deliver  the 
same  for  the  use  of  such  library  :  and  if  any  publisher  or 
the  warehouse-keeper  of  the  said  Company  of  Stationers 
shall  not  observe  the  directions  of  this  Act  therein,  that 
then  he  and  they  so  making  default  in  not  delivering  or 
receiving  the  said  eleven  printed  copies  as  aforesaid  shall 
forfeit  besides  the  value  of  the  said  printed  copies  the 
sum  of  five  pounds  for  each  copy  not  so  delivered  or  re- 
ceived together  with  the   full  costs  of  suit ;  the  same  to 
be  recovered  by  the  person  or  persons  or  body  politic  or 
corporate  proprietors  or  managers  of  the  library  for  the 
use  whereof  such  copy  or  copies  ought  to  have  been  de- 
livered or  received ;  for  which  penalties  and  value  such 
person  or  persons  body  politic  or  corporate  is  or  are 
now  hereby  authorized  to  sue   by  action  of  debt  or  other 


Publishers, 
&c.  neg- 
lecting. 


Penalty. 


APPENDIX.  45 

proper  action  in  any  court  of  record  in  the  United  King-  ."J'lG.III. 
doni.  c.  150. 

III.  Provided  always   and   be   it  further  enacted,  That  ^^'"'^"'*^ 

•'  '  ISo  copies 

no  such  printed  copy  or  copies  shall   be  demanded  by  or  of  scconil, 

delivered  to  or  for  the  use  of  any  of  the  libraries  herein-  without'"" 

before  mentioned  of  the  second  edition  or  of  any  subse-  ajl«l'''o.n  ">" 

,.  .  ^  ,       ,  ,       ,  ,  ,    ,  ,  alteration, 

quent  edition  ot  any  book  or   books  so  demanded   and  demanded. 

delivered  as  aforesaid,  unless  the  same  shall  contain  addi- 
tions or  alterations  :  and   in   case   any  edition    after   the 
first  of  any  book  so  demanded  and  delivered  as  aforesaid 
shall  contain  any  addition  or  alteration  no  printed  copy  or  Additions 
copies  thereof  shall   be  demanded  or  delivered  as  afore-  printed  and 

ciGlivcrGci 

said,  if  a  printed  copy  of  such   additions  or  alterations  separate. 
only  printed  in   an  uniform  manner  with  the  former  edi- 
tion of  such  book  be  delivered  to  each  of  the  libraries 
aforesaid,  for  whose  use  a  copy  of  the  former  edition  shall 
have  been  demanded   and  delivered  as  aforesaid  :  Provi- 
ded also,  that  the  copy  of  every  book  that  shall  be  de-  Proviso  for 
manded  by  the  British  Museum  shall  be  delivered  of  the  ^Juseilm 
best  paper  on  which  such  work  shall  be  printed. 

IV.  "And   whereas   by  the  said  recited  Acts   of  the  s  Anne, 
eighth  year  of  Queen  Anne  and  the  forty-first  year  of  his  ^^  ^^%li 

41     VT,   HI. 

present  Majesty's  reign  it  is  enacted  that  the   author  of  (U.  K.) 
any  book  or  books  and   the  assignee  or   assigns  of  such  '^'  ^'-''^  ^• 
author  respectively,  should   have  the  sole  liberty  of  print-  Inst'^afl  of 
ing  and  reprinting  such  book  or  books  for  the  term  of  for  u  years 
fourteen  years,  to  commence  from  the  day  of  first  pub-  ^"ntiy^fo"'' 
lishiug  the  same  and  no  longer;  and  it  was  provided,  that  i'  more. 

r.       .1  •        ■  c    1  "•  1  ^  r  ,       aiithors,&c. 

alter  tiie  expiration  ot  the  said  term  of  fourteen  years,  the  shall  have 
right  of  printiniT  or  disposing  of  copies  should  return  to  -^  years' 

,  '^  °  r  3  r  copyrisjht 

the  authors  thereof,  if  they  were  then  living,  for  another  in  works, 
term  of  fourteen  years:  And  whereas  it  will  alTord  further  dueofhfe' 
encouragement  to  literature  if  the  duration  of  such  copy- 
right were  extended  in  manner  herein-after  mentioned  ;" 
Be  it  further  enacted.  That  from  and  after  the  passing  of 
this  Act  the  author  of  any  book  or  books  composed  and 
not  printed  and  published,  or  which  shall  hereafter  be 
composed  and  be  printed  and  published  and  his  assignee 
or  assigns  shall   have  the   sole   liberty   of   printing   and 


46 


APPENDIX. 


54  G.  III. 
c.  15G. 


Booksel- 
lers, &c.  in 
any  part  of 
United 
Kingdom, 
or  British 
dominions, 
who  shall 
print,  &c. 
any  book, 
•without 
consent  of 

firoprietor, 
iable  to 
action  for 
damages. 


Penalty. 


reprinting  such  book  or  books  for  the  full  term  of  twenty- 
eight  years  to  commence  from  the  day  of  first  publishing 
the  same,  and  also  if  the  author  shall  be  living  at  the  end 
of  that  period  for  the  residue  of  his  natural  life  ;  and  that 
if  any  bookseller  or  printer  or  other  person  whatsoever  in 
any  part  of  the  United  Kingdom  of  Great.  Britain  and 
Ireland  in  the  Isles  of  Man  Jersey  or  Guernsey  or  in  any 
other  part  of  the  British  dominions  shall  from  and  after 
the  passing  of  this  Act,  within  the  terms  and  times  grant- 
ed and  limited  l)y  this  Act  as  aforesaid,  print  reprint  or 
import  or  shall  cause  to  be  printed  reprinted  or  imported 
any  such  book  or  books  without  the  consent  of  the  author 
or  authors  or  other  proprietor  or  proprietors  of  the  copy- 
ricrht  of  and  in  such  book  and  books  first  had  and  obtain- 
ed in  writing  ;  or  knowing  the  same  to  be  so  printed  re- 
printed or  imported  without  such  consent  of  such  author 
or  authors  or  other  proprietor  or  proprietors,  shall  sell, 
publish  or  expose  to  sale  or  cause  to  be  sold  published  or 
exposed  to  sale  or  shall  have  in  his  or  their  possession  for 
sale  any  such  book  or  books  without  such  consent  first 
had  and  obtained  as  aforesaid,  then  such  offender  or 
offenders  shall  be  liable  to  a  special  action  on  the  case  at 
the  suit  of  the  author  or  authors  or  other  proprietor  or 
proprietors  of  the  copyright  of  such  book  or  books  so 
unlawfully  printed  reprinted  or  imported  or  published 
or  exposed  to  sale  or  being  in  the  possession  of  such 
offender  or  offenders  for  sale  as  aforesaid  contrary  to 
the  true  intent  and  meaning  of  this  Act :  and  every 
such  author  or  authors  or  other  proprietor  or  proprietors 
shall  and  may  by  and  in  such  special  action  upon  the  case 
to  be  so  brought  against  such  offender  or  offenders  in  any 
court  of  record  in  that  part  of  the  said  United  Kingdom 
or  of  the  British  dominions  in  which  the  ofience  shall  be 
committed,  recover  such  damages  as  the  jury  on  the  trial 
of  such  action  or  on  the  execution  of  a  writ  of  enquiry 
thereon,  shall  give  give  or  assess  together  with  double 
costs  of  suit;  in  which  action  no  wager  of  law  essoign 
privilege  or  protection  nor  more  tlian  one  imparlance 
shall   be  allowed  ;  and    all   and   every  such  offender  and 


APPENDIX.  47 

offenders  shall  also  forfeit  such  book  or  books  and  all  and  54  G.  III. 
every  sheet  being  part  of  such  book  or  books,  and  shall  c.  loG. 
deliver  the  same  to  the  author  or  authors  or  other  propri- 
etor or  proprietors  of  the  copyright  of  such  book  or  books 
upon  order  of  any  court  of  record  in  which  any  action  or 
suit  in  law  or  equity  shall  be  commenced  or  prosecuted 
by  such  author  or  authors  or  other  proprietor  or  proprie- 
tors to  be  made  on  motion  or  petition  to  the  said  court; 
and  the  said  author  or  authors  or  other  proprietor  or  pro- 
prietors shall  forthwith  damask  or  njake  waste  paper  of 
the  said  book  or  books  and  sheet  or  sheets ;  and  all  and 
every  such  offender  or  offenders  shall  also  forfeit  the  Penalty, 
sum  of  three  pence  for  every  sheet  thereof  either  printed 
or  printing  or  published  or  exposed  to  sale  contrary  to  the 
true  intent  and  meaning  of  this  Act ;  the  one  moiety 
thereof  to  the  King's  most  excellent  Majesty  his  heirs 
and  successors,  and  the  other  moiety  thereof  to  any  per- 
son or  persons  who  shall  sue  for  the  same,  in  any  such 
court  of  record  by  action  of  debt  bill  plaint  or  informa- 
tion, in  which  no  wager  of  law  essoign  privilege  or  pro- 
tection nor  more  than  one  imparlance  shall  be  allowed  : 
Provided  always,  that  in  Scotla7id  such  offender  or  offend-  offenders 
ers  shall  be  liable  to  an  action  of  damages  in  the  court  of '"^'^°^^^'^'^- 
session  in  Scolland,  which  shall  and  may  be  brought  and 
prosecuted  in  the  same  manner  in  which  any  other  action 
of  damages  to  the  like  amount  may  be  brought  and  pro- 
secuted there  ;  and  in  any  such  action  where  damages 
shall  be  awarded  double  costs  of  suit  or  expenses  of  pro- 
cess shall  be  allowed. 

V.  And  in  order  to  ascertain  what  books  shall  be  from  Within 
time  to  time  publi.-^hed,  Beit  enacted,  That  the  publisher  tiiie  of 

or   publishers  of  any  and  every  book  demanduble   under  l'<»>l<s  en- 

.  .  .  teren  at 

this  Act,  which   shall   be  published  at  any  time  after  the  Stationers' 

passing  of  this  Act,  shall  within  one  calendar  month  after 
the  day  on  which  any  such  book  or  books  respectively 
shall  be  first  sold  published  advertised  or  loffered  for  sale 
within  the  bills  of  mortality,  or  within  three  calendar 
months  if  the  said  book  shall  be  sold  published  or  adver- 
tised in  any  other  part  of  the  United   Kingdom  enter  the 


48 


APPENDIX. 


54  G.  Ill, 

c.  156. 


Copy  for 

British 

Museum. 


Inspection 
of  register- 
book. 


Certificate. 


Title  of 
book  not 
entered. 


Penalty. 


Proviso  for 
Magazines, 
&c. 


Proviso. 


title  to  the  copy  of  every  such  book  and  the  name  or 
names  and  place  of  abode  of  the  publisher  or  publishers 
thereof  in  the  register  book  of  the  Company  of  Stationers 
in  London,  in  such  manner  as  hath  been  usual  with  re- 
spect to  books  the  title  whereof  hath  heretofore  been  en- 
tered in  such  register  book,  and  deliver  one  copy  on  the 
best  paper  as  aforesaid  for  the  use  of  the  British  Museum ; 
which  register  book  shall  at  all  times  be  kept  at  the  hall 
of  the  said  Company  ;   for  every  of  which  several  entries 
the  sum  of  two  shillings  shall  be  paid   and  no  more; 
which  said  register  book  may  at  all  seasonable  and  con- 
venient times  be  resorted  to  and  inspected   by  any  per- 
son ;  for  which   inspection  the  sum  of  one  shilling  shall 
be  paid  to  the  warehouse-keeper  of  the  said  Company  of 
Stationers,  and  such  warehouse-keeper  shall  when  and 
as  often  as  thereto  required,   give  a  certificate  under  his 
hand  of  every  or  any  such  entry,  and  for  every  such  cer- 
tificate the  sum  of  one  shilling  shall  be  paid  ;  and  in  case 
such  entry  of  the  title   of  any  such   book  or  books  shall 
not  be  duly  made  by  the  publisher  or  publishers  of  any 
such   book  or  books  within   the   said  calendar   month  or 
three  months  as  the  case  may  be,  then  the  publisher  or 
publishers  of  such  book  or  books  shall  forfeit  the  sum  of 
five  pounds  together  with  eleven  times  the  price  at  which 
such   book  shall    be   sold  or   advertised,  to  be   recovered 
together  with  full   cost  of  suit  by  the  person  or  persons 
body  politic  or  corporate  authorized  to  sue  and  who  shall 
first  sue  for  the  same  in  any  court  of  record  in  the  Uni- 
ted Kingdom  by  action  of  debt  bill  plaint  or  information, 
in  which  no  wager  of  law  essoign  privilege  or  protection 
nor  more  than  one  imparlance  shall  be  allowed:  Provided 
always.  That  in  the  case  of  magazines   reviews  or   other 
periodical  publications,  it  shall  be  sufficient  to  make  such 
entry  in  the  register  book  of  the  said   Company  within 
one  month  next  after  the  publication  of  the  first  number 
or  volume  of  such  magazine  review  or  other  periodical 
publication  :  Provided  always,  That  no  failure  in  making 
any  such  entry  shall   in  any  manner  affect  any  copyright, 
but  shall  only  subject  the   person  making  default  to  the 
penalty  aforesaid  under  this  Act. 


APPENDIX.  49 

VI.  And  be  it   further  enacted,  That  the  said  ware- 54  G.  III. 
house-keeper   of  the   Company  of  Stationers  shall   from     c.  15G. 
time  to  time  and  at  all  times,  without  any  greater  inter-  ^TT"^^"^^ 

,     ,  .  ,  .  .        ,.,  >>aretiouse 

val  tlian  tnree  montlis,  tran.«mit  to  the   librarian  or  other  keeper  of 
person  authorized  on  behalf  of  the  libraries  before  men-  Halrtr"^*' 
tioned  correct  lists  of  all   books  entered  in  the  books  of  ""^"sni'i  to 

.1  •  1  /-,  1        ^  ...      -  ,.  ,   librarians 

the  said  Company  and  not  contained  in  former  lists;   and  lists  of 

that  on   beintr  retiuired  so  to  do  by  tlie  said   librarians  or  books  en- 

°         '  -•'  tered ;  and 

other  authorized  person  or  either  of  them,  he  shall  call  callon  pub- 
on  the  publisher  or  publishers  of  such  books  for  as  many  copies.  °' 
of  the  said  copies  as  may  have  been  demanded  of  them. 

VII.  Provided  always  and  be  it  further  enacted.  That  Publishers 
if  any  publisher  shall   be  desirous  of  delivering  the  copy  {.oo^s'^T 
of  such  book  or  volume  as  aforesaid  as  shall  be  demanded  library. 
on  behalf  of  any  of  the  said   libraries  at  such   library,  it 

shall  and  may  be  lawful   for  him   to  deliver  the   same  at 

such  library  to  the  librarian  or  other  person   authorized 

to  receive  the  same   (who  is  hereby  required  to  receive 

and  to  give  a  receipt  in  writing  for  the  same)  :  and  such  ^vhat 

delivery  shall  to  all  intents  and  i)urposes  of  this  Act  be  as  deemed  de- 

I  11-  1-1  1  .  livery, 

equivalent  to  a  delivery  to  the  said  warehouse-keeper. 

VIII.  And  whereas   it   is   reasonable   that   authors  of  Authors  of 
books  already  published  and  who  are   now   livinor  should  I'ooks  pub- 

11  ii.'f.i  •  ,.  °  lished,  now 

also  have  the  benefit  of  the  extension  of  copyright ;   Be  it  livinj?,  lo 
further  enacted,  That  if  the  author  of  any  book  or  books  Jreiea-^^ 
which  shall  not  have  been  published  fourteen  years  at  the  sion  of 
time  of  passing  this  Act  shall   be  living  at  the  said  time,  '^°*'^'^'^  *' 
and  if  such  author  shall  afterwards  die  before  the  expira- 
tion of  the   said  fourteen  years,  then   the  personal  repre- 
sentative of  the   said   author  and  the  assignees  or  assigns 
of  such  personal   representative  shall   have  the  sole  right 
of  printing  and  publishing  the  said  book  or  books  for  the 
further  term  of  fourteen  years  after  the  expiration  of  the 
first  fourteen  years  :  Provided   that    nothing  in  this  Act  p^^^jg^ 
contained  jhall  affect  the  right  of  the   assignee  or  assioms 
of  such  author  to  sell  any  copies  of  the  said  book  or  books 
vvhicii  shall  have  been  printed  by  such  assignee  or  assiirns 
within  the   first   fourteen  years  or   the  terms  of  any  con- 
tract between  such  author  and  such  assignee  or  assio^ns. 

o  o 

e 


50 


APPENDIX. 


54  G.  III. 

c.  156. 

Authors 
living  at 
end  of  23 
years  sole 
right  of 
publication 
for  life. 


Limitation 
of  actions. 


IX.  And  be  it  also  further  enacted,  That  if  the  author 
of  any  book  or  books  whicli  have  been  already  published 
shall  be  living  at  the  end  of  twenty-eight  years  after  the 
first  publication  of  the  said  book  or  books,  he  or  she  shall 
for  the  remainder  of  his  or  her  life  have  the  sole  right  of 
printing  and  publishing  the  same  :  Provided  that  this 
shall  not  affect  the  right  of  the  assignee  or  assigns  of 
such  author  to  sell  any  copies  of  the  said  book  or  books 
which  shall  have  been  printed  by  such  assignee  or  assigns 
within  the  said  twenty-eight  years  or  the  terms  of  any 
contract  between  such  author  and  such  assignee  or 
assigns. 

X.  Provided  nevertheless  and  be  it  further  enacted, 
That  all  actions  suits  bills  indictments  or  informations 
for  any  offence  that  shall  be  committed  against  this  Act 
shall  be  brought  sued  and  commenced  within  twelve 
months  next  after  such  offence  committed,  or  else  the 
same  shall  be  void  and  of  no  effect. 


APPENDIX.  51 


3  Will.  IV.  c.  l''j.  —  An  Act  to  amend  the  Laws 
relating  to  Dramatic  and  Ijitcrary  Property. — 
[10/A  June  1833.] 

Whereas  by  an  Act  passed  in  the  fifty-fourth  year  of  the  3  "\V.  IV 
reign  of  his  late  Majesty  King  George  the  Third,  intituled  c.  15. 
"  An  Act  to  amend  the  several  Acts  for  the  Encourage- 
ment of  Learning,  by  securing  the  Copies  and  Copyright 
of  Printed  Books  to  the  Authors  of  such  Books,  or  their 
Assigns,"  it  was  amongst  other  things  provided  and  en- 
acted, that  from  and  after  the  passing  of  the  said  act  the 
author  of  any  book  or  books  composed,  and  not  printed 
or  published,  or  which  should  thereafter  be  composed  and 
printed  and  published,  and  his  assignee  or  assigns,  should 
have  the  sole  liberty  of  printing  and  reprinting  such 
book  or  books  for  the  full  term  of  twenty-eight  years,  to 
commence  from  the  day  of  first  publishing  the  same,  and 
also,  if  the  author  should  be  living  at  the  end  of  that  pe- 
riod, for  the  residue  of  his  natural  life  :  and  whereas  it  is 
expedient  to  extend  the  provisions  of  the  said  act ;  be  it 
therefore  enacted  by  the  King's  most  excellent  Majesty, 
by  and  with  the  advice  and  consent  of  the  lords  spiritual 
and  temporal,  and  commons,  in  this  present  parliament 
assembled,  and  by  the  authority  of  the  same,  That  from  The  author 
and  after  the  passing  of  this  act  the  author  of  any  trage-  of^nydra- 

r  o  J         s       malic  piece 

dy,  comedy,   play,   opera,   farce,   or   any  other  dramatic  shall  have 

piece  or   entertainment,  composed,  and  not  printed   and  f,erty^ihe 

published  by  the  author  thereof  or  his  assignee,  or  which  ^"'^^  liherty 

hereafter  shall  be  composed,  and  not  printed  or  published  scmingit, 

by  the  author  thereof  or   his  assignee,  or  the  assicrnee  of  "/'  ^""s'ng 
•'  .  o  It  to  be  re- 

such  author,  shall   have  as  his  own  property  the  sole  lib-  presented, 

erty  of  representing,  or  causing  to  be  represented,  at  any  of  dramatk 
place  or  places  of  dramatic  entertainment  whatsoever,  in  ^'itertain- 
any  part  of  the  United  Kingdom  of  Great  Britain  and  Ire- 
land, in  the  isles  of  Man,  Jersey,  and  Guernsey,  or  in  any 
part  of  the  British  dominions,  any  such  production  as 
aforesaid,  not  printed  and  published  by  the  author  thereof 
or  his  assignee,  and  shall  be  deemed  and  taken  to  be  the 


52  APPENDIX. 

3W.  IV.  proprietor  thereof;  and  that  the  author  of  any  such  pro- 
c.  15.      duction,  printed   and   published  within   ten   years  before 
the  passing  of  this  act  by  the  author  thereof  or  his   as- 
signee, or  which  shall  hereafter  be  so  printed  and  publish- 
ed, or  the  assignee  of  such  author,  shall,  from  the  time  of 
passing  this  act,  or   from  the  time  of  such  publication  re- 
spectively, until  the  end  of  twenty-eight  years  from  the 
day  of  such  first  publication  of  the  same,  and  also,  if  the 
author  or  authors,  or  the  survivor  of  the  authors,  shall  be 
living  at  the  end  of  that  period,  during  the  residue  of  his 
natural  life,  have  as  his  own  property  the  sole  liberty  of 
representing,  or  causing  to  be  represented,  the  same  at 
any  such  place  of  dramatic   entertainment  as  aforesaid, 
and  shall  be  deemed  and  taken  to  be  the  proprietor  there- 
Proviso  as    of:  provided   nevertheless,  that  nothing   in   this  act  con- 
to  cases       tained  shall  prejudice,  alter,  or  affect  the  right  or  author- 
where,  pre-  1     J  '  »  o 

vious  to  the  ity  of  any  person  to  represent  or  cause  to  be  represented, 
thfs^aH  a     ^^  ^"y  pJfice  or  places  of  dramatic  entertainment  whatso- 

consent  has  ever,   any  such  production   as  aforesaid,  in   all   cases  in 
been  '^ivcn. 

"       '  which  the  author  thereof  or  his  assignee  shall,  previously 

to  the  passing  of  this  act,  have  given  his  consent  to  or 

authorized  such  representation,  but  that  such  sole  liberty 

of  the  author  or   his  assignee  shall   be  subject  to  such 

right  or  authority. 

Penalty  on        II.  And  be  it  further  enacted.  That  if  any  person  shall, 

performing'  during  the  continuance  of  such  sole  liberty  as  aforesaid, 

pieces  con-  contrary  to  the  intent  of  this  act,  or  right  of  the  author  or 
trarytolhis  •'  ,  j        •  , 

act.  his  assignee,  represent,  or  cause  to  be  represented,  with- 

out the  consent  in  writing  of  the  author  or  other  proprie- 
tor first  had  and  obtained,  at  any  place  of  dramatic  enter- 
tainment within  the  limits  aforesaid,  any  such  production 
as  aforesaid,  or  any  part  thereof,  every  such  offender 
shall  be  liable  for  each  and  every  such  representation  to 
the  payment  of  an  amount  not  less  than  forty  shillings,  or 
to  the  full  amount  of  the  benefit  or  advantage  arising 
from  such  representation,  or  the  injury  or  loss  sustained 
by  the  plaintiff"  therefrom,  whichever  shall  be  the  greater 
damages,  to  the  author  or  other  proprietor  of  such  pro- 
duction so  represented  contrary  to  the  true  intent  and 


APPENDIX.  53 

meaning  of  this  act,  to  be  recovered,  togctlier  with  double  3  W.  IV. 
costs  of  suit,  by  such  autlior  or  other  proprietors,  in  any  ^-  l'^- 
court  having  jurisdiction  in  such  cases  in  that  part  of  the 
said  United  Kingdom  or  of  the  British  dominions  in  which 
the  ofiencc  shall  be  committed ;  and  in  every  such  pro- 
ceeding where  the  sole  liberty  of  sucli  author  or  his  as- 
signee as  aforesaid  shall  be  subject  to  such  right  or  au- 
thority as  aforesaid,  it  shall  be  sufficient  for  the  plaintiff 
to  state  tliat  he  has  such  sole  liberty,  without  stating  the 
same  to  be  subject  to  such  right  or  authority,  or  other- 
wise mentioning  the  same. 

III.  Provided  nevertheless,  and  be  it  further  enacted,  Limitation 
That  all  actions  or  proceedings  for  any  offence  or  injury  ^  actions, 
that  shall  be  committed  against  this  act  shall  be  brought, 

sued,  and  commenced  within  twelve  calendar  months 
next  after  such  offence  committed,  or  else  the  same  shall 
be  void  and  of  no  effect. 

IV.  And  be  it  further  enacted,  That  whenever  authors,  E^cplana- 
persons,  offenders,  or  others  are  spoken  of  in  this  act  in  words, 
the  singular  number  or  in  the  masculine  gender,  the  same 

shall  extend  to  any  number  of  persons  and  to  either  sex. 


54  APPENDIX. 

5  &  6  W.  IV.  —  An  Act  for  preventing  the  Publica- 
tion of  Lectures  without  Consent.  —  [9lh  Septem- 
ber 1SS5.] 

5  &  6  Whereas  printers,  publishers,  and  other  persons  have 
Will.  IV.  frequently  taken  the  liberty  of  printing  and  publishing 
'^"^"^''''"^^  lectures  delivered  upon  divers  subjects,  without  the  con- 
sent of  the  authors  of  such  lectures,  or  the  persons  de- 
livering the  same  in  public,  to  the  great  detriment  of  such 
Authors  of  authors  and  lecturers:  Be  it  enacted,  &c.,  That  from 
their  as-  and  after  the  first  day  of  September  one  thousand  eight 
signs    to     hundred  and  thirty-five  the  author  of  any  lecture  or  lec- 

have   the  •'  i  i  i  • 

sole  right    tures,  or  the  person  to  whom  he  hath  sold  or  otherwise 

theni^''^^     conveyed  the  copy  thereof,  in  order  to  deliver  the  same 

in  any  school,  seminary,  institution,  or  other  place,  or  for 

any  other  purpose,  shall   have  the  sole  right  and  liberty 

Penalty  on   ^^f  printinor  and  publishing  such  lecture  or  lectures;  and 

other  per-  r  a  i  o 

sons  puh-  that  if  any  person  shall,  by  taking  down  the  same  in  short 
ye^c'tln-es^'^"  ^^"^  ^^  Otherwise  in  writing,  or  in  any  other  way,  ob- 
without  tain  or  make  a  copy  of  such  lecture  or  lectures,  and  shall 
print  or  lithograph  or  otherwise  copy  and  publish  the 
same,  or  cause  the  same  to  be  printed,  lithographed,  or 
otherwise  copied  and  published,  without  leave  of  the  au- 
thor thereof,  or  of  the  person  to  whom  the  author  thereof 
hath  sold  or  otherwise  conveyed  the  same,  and  every  per- 
son who,  knowing  the  same  to  have  been  printed  or  copied 
and  published  without  such  consent,  shall  sell,  publish  or 
expose  to  sale,  or  cause  to  be  sold,  published,  or  exposed 
to  sale  any  such  lecture  or  lectures,  shall  forfeit  such 
printed  or  otherwise  copied  lecture  or  lectures,  or  parts 
thereof,  together  with  one  penny  for  every  sheet  thereof 
which  shall  be  found  in  his  custody,  either  printed,  litho- 
graphed, or  copied,  or  printing,  lithographing  or  copying, 
published  or  exposed  to  sale,  contrary  to  the  true  intent 
and  meaning  of  this  act,  the  one  moiety  thereof  to  his 
Majesty,  his  heirs  or  successors,  and  the  other  moiety 
thereof  to  any  person  who  shall  sue  for  the  same,  to  be 
recovered    in   any  of  his  Majesty's  courts  of  record  in 


APPENDIX.  55 

Westminstor  by  action  of  debt,  bill,  plaint,  or  informa-    5  &  6 
tion,  in  which  no  wager  of  law,  essoign,  privilege,  or  pro-  Will.  IV. 
tection,  or  more  than  one  imparlance,  shall  be  allowed. 

n.  That  any  printer  or  publisher  of  any  newspaper  Penalty  on 
who  shall,  without  such  leave  as  aforesaid,  print  and  pub-  pui"i,*^|ferJ 
lish  in  such  newspaper  any  lecture  or  lectures,  shall  be  oinewspa- 

,         pprs    pub- 

deemed  and  taken  to  be  a  person  printing  and  publish-  fishing  icc- 
ing  without  leave  within  the  provisions  of  this  act,  and  "^".'jl  ^^*^" 
liable  to  the  aforesaid   forfeitures  and  penalties  in  respect 
of  such  printing  and  publishing. 

III.  That  no  person  allowed  for  certain  fee  and  reward,  Persons 

or  otherwise,  to  attend  and  be  present  at  any  lecture  de-  jea^v" *to  at- 

livered   in  any  place,  shall  be  deemed   and   taken  to  be  tend  lec- 
,.  ,  ,  ,  .  111-11     tures  not  on 

licensed  or  to  have  leave  to  print,  copy,  and  publish  such  that  ac- 
lectures  only  because  of  having  leave  to  attend  such  lee-  count  licen- 

■'  "  sed  to  pub- 

ture  or  lectures.  lish  them. 

IV.  Provided   always,  That   nothing  in  this  act  shall  Act  not  to 

....  ^  .      .  .  ,   prohibit  the 

extend  to  prohibit  any  person  Irom  printing,  copying,  and  pui.lishing 

publishing  any  lecture  or  lectures  which  have  or  shall  °[J^'^^'"he* 

have   been   printed  and  published  with  leave  of  the   au-  expiration 

thors  thereof  or  their    assignees,  and   whereof  the   time  "iglit*^'^''^'^ 

hath  or  shall  have  expired  within  which  the  sole  right  to 

print  and  publish  the  same  is  given  by  an  act  passed  in 

the  eighth  year  of  the  reign  of  queen  Anne,  intituled  An     s  Anne, 

Act  for  the  Encouragement  of  Learning,  hij  vesting  the 

Copies  of  Printed  Books  in  the  Authors  or  Purchaser's  of 

such  Copies  during  the   Times  therein  mentioned,  and  by 

another   passed   in   the  fifty-fourth  year  of  the  reign  of 

kin<:  Geortre  the  tliird,  intituled  An  Act  to  amend  the  sev-    54  G.  III. 

c.  156. 

eral  Acts  for  the  Encouragement  of  Learning,  by  securing 
the  Copies  and  Copyright  of  printed  Books  to  the  Authors 
of  such  Books,  or  their  Assigns,  or  to  any  lectures  which 
have  been  printed  or  published  before  the  passing  of  this 
act. 

V.  Provided  further.  That  nothing  in  this  act  shall  ex-  Act  not  to 
tend  to  any  lecture  or  lectures,  or  the  printing,  copying,  jp^ctures  de- 
or  publishincr  any  lecture  or  lectures,  or  parts  thereof,  of  livercd  in 

111-         -  /      1  -    1  -   -  1     11  u  unlicensed 

the  delivering  of  which  notice  in  writing  shall  not  have  places, &c. 
been  given  to  two  justices  living  within  five  miles  from 


56  APPENDIX. 

^5  &  G  the  place  where  such  lecture  or  lectures  shall  be  deliver- 
"Will.  IV.  ed  two  days  at  the  least  before  delivering  the  same,  or  to 
any  lecture  or  lectures  delivered  in  any  university  or 
public  school  or  college,  or  on  any  public  foundation,  or 
by  any  individual  in  virtue  of  or  according  to  any  gift, 
endowment,  or  foundation ;  and  that  the  law  relating 
thereto  shall  remain  the  same  as  if  this  act  had  not  been 
passed. 


APPENDIX.  57 


1  &  2  Vict.  c.  59.  —  An  Act  for  securing  to  Authors, 
in  certain  Cases,  the  Benefit  of  International  Copy- 
right. —  [Sist  July  1838.] 

Whereas  it  is  desirable  to  afford  protection  within  lier     I  &  2 

Majesty's  dominions  to  the  authors  of  books  first  publish-      Vict. 

ed  in  foreign  countries,  and  their  assigns,  in  cases  where      ^-  •^"• 

protection  shall  be  afforded  in  such  foreign   countries  to  HerMaies- 

the  authors  of  books   first  published  in  her  Majesty's  do-  ly,  l>y  order 

,      ,     .  1        •       1         c  J  1       in  council, 

minions,   and  their  assigns ;  be   it  therefore  enacted  by  ^ay  direct 

the  dueen's  most   excellent  Majesty,  by  and  with  the  ad-  that  authors 
vice  and  consent  of  the  lords  spiritual  and  temporal,  and  first  pub- 
commons,  in  this  present  parliament  assembled,  and  by  fo%Ln'" 

the  autliority  of  the  same,   Tliat  it  shall  be  lawful  for  her  countries, 
,,    .  ,  ,  ,-  1         1 T    •  -1  1-  ''"'fl  their 

Majesty,  by  any  order  of  lier  Majesty  in  council,  to  direct  assigns, 

that  the  authors  of  books  which  shall,  after  a  future  time  *''"'^  ^^^l.. 

.  .      *  copyright 

to  be  specified  in  such  order  in  council,  be  published  in  in  such 

any  foreign  country  to  be  specified  in  such  order  in  coun-  j^  j,pf  j^l^/ 

cil,  and  their  executors,  administrators,  and  assigns,  shall  jcstys 
L  111  n      •      ■  111       dominions. 

nave  tlie  sole  liberty  of  printing  and  reprinting  such  books 
within  the  United  Kingdom  of  Great  Britain  and  Ireland, 
and  every  other  part  of  the  British  dominions,  for  such 
term  as  her  Majesty  shall  by  such  order  in  council  direct, 
not  exceeding  the  term  which  authors  being  British  sub- 
jects are  now  by  law  entitled  to  in  respect  of  books  first 
publislied  within  the  United  Kingdom;  provided  that  no 
such  author  or  his  assigns  shall   be  entitled  to  the  benefit 
of  this  act  unless,  within  a  time  to  be  in  that  behalf  pre- 
scribed by  such  order  in  council,  the  title  to  the  copy  of  .pj,]^  ^^ 
every  such  book,  and  the  name  and  place  of  abode  of  the  book  to  be 
author  thereof,  and  the   time  and   place  of  the  first  publi-  stationers' 
cation  thereof  in  such  foreign  country,  shall   be  entered  Hall,  and 

o  J  J  one  copy 

in  the  register  book  of  the  Company  of  Stationers  in  delivered  to 
London ;  and  unless,  within  a  time  to  be  also  prescribed  i,ouse 
by  such  order  in  council,  one  printed  copy  of  the   whole  keeper, 
of  such  book  and  of  every  volume  thereof,  upon  the  best 
paper  upon  which  the  largest  number  or  impressions  of 
such  book  sliall  have  been  printed  for  sale,  together  with 


58  APPENDIX. 

1  &,  2  all  maps  and  prints  relating  thereto,  shall  be  delivered  to 

Vict,  the  warehouse-keeper  of  the  Company   of  Stationers  at 

c.  o9.  ^]^Q  }jjjji  of  ilie  said  company, 

la  case  of  ^^-  Provided  always,  and  be  it  enacted,  That  if  a  book 

books  pub-  be  published  anonymously  it  shall  be  sufficient  to  insert 
lished  anon-  .       ,  i  ^   •  i  •  i       i      i  j 

ymously,      m  the  entry  thereot   in  such   register  book  the  name  and 

the  name  of  pj^ce  of  abode  of  the   first  publisher   thereof,  instead  of 

the  publish-  '  '  ' 

er  to  be  the  name  and  place  of  abode  of  the  author  thereof,  toge- 
su    cien  .     ^Y^Qj  ^yjth  a  declaration  that  such  entry  is  made  either  on 

behalf  of  the  author  or  on  behalf  of  such  first  publisher, 

as  the  case  may  require. 
Wrongful         III.  And  be  it  enacted,  That  every  such  entry  shall  be 
first  pubh-    pyijyifi   facie   proof  of  a   rightful  first  publication ;  but  if 

cation  may  ^  J  i  .        . 

be  amended  there  be  a  wrongful  first  publication,  and  any  party  have 
cJhancery."  availed  himself  thereof  to  obtain  an  entry  of  a  spurious 
work,  the  author  or  his  first  publisher  may  apply  by  peti- 
tion or  on  motion  to  the  Court  of  Chancery  to  order  such 
entry  to  be  amended ;  but  no  such  order  shall  be  made 
unless  it  be  proved  to  the  satisfaction  of  the  said  court, 
first  with  respect  to  a  wrongful  publication  in  a  country 
to  which  the  author  or  first  publisher  does  not  belong, 
and  in  regard  to  which  there  does  not  subsist  with  this 
country  any  treaty  of  international  copyright,  that  the 
party  making  the  application  was  the  author  or  first  pub- 
lisher, as  the  case  requires;  second,  with  respect  to  a 
wrongful  first  publication  either  in  the  country  where  a 
rightful  first  publication  has  taken  place,  or  in  regard  to 
which  there  subsists  with  this  country  a  treaty  of  interna- 
tional copyright,  that  a  court  of  competent  jurisdiction  in 
any  such  country  where  such  wrongful  first  publication 
has  taken  place  has  given  judgment  in  favor  of  the  right 
of  the  party  claiming  to  be  the  author  or  first  publisher. 
Register  IV.  And  be  it  enacted,  That  such  register  book  shall 

kept  at  ^  ^*  ^''  times  be  kept  at  the  hall  of  the  said  company,  and 
Stationers'  for  every  such  entry  the  sum  of  two  sliillinjrs,  and  no 
Hall,  and  to  /„  ^  •  ,  ,    ,  •  ,       , 

b*  open  to    more,  shall  be  paid,  and  the  same  register  book   may  at 

inspection,    j^]]  seasonable  and  convenient  times  be  inspected  by  any 

person   on  payment  of  the   sum  of  one  shilling,  and  no 

more,  to  the  warehouse  keeper  of  the  said  Company  of 


APPENDIX.  59 

Stationers ;  and  such  warehouse  keeper  shall,  when  and      1  6i,  2 

as  often  as  thereto  required,  give  a  certificate  under  his       Vict. 

liand  of  every  or  any  sucli  entry  and  delivery,  and  of  the      c.  oJ. 

time  of  making  the  same  respectively,  and  for  every  such  certificate 

certificate  the  sum  of  one  shilling  shall  be  paid  :  and  such  ''V  ^^f^- 

.  .  house 

certificate,  upon  proof  of  the  handwriting  of  the  person  keeper. 

signing  the  same,  and  that  sucli  person  was  in  fact  the 
warehouse  keeper  of  the  said  company,  shall  without  fur- 
ther proof  be  admitted  in  all  courts  as  evidence  of  such 
entry  and  delivery,  and  of  the  time  of  making  the  same 
respectively. 

V.  And  be  it  enacted,  That  the  said  warehouse  keeper  Warehouse 
shall  receive  at  the  hall  of  the  said   company  every  book  JjeposiV* 
or  volume  so  to  be  delivered  as  aforesaid,  and  within  one  books  in 
calendar  month  after  receiving  such  book  or  volume  shall  Museum. 
deposit  the  same  in  the  library  of  the  British  Museum. 

VI.  Provided  always,  and  be  it  enacted,  that  it  shall  Second  or 
not  be  requisite  to  deliver  to  the  warehouse  keeper  of  the  edl'tlons^"' 
said  Stationers'  Company  any  printed  copy  of  the  second 

or  of  any  subsequent  edition  of  any  book  or  books  so  de- 
livered as  aforesaid,  unless  the  same  shall  contain  addi- 
tions or  alterations ;  and  in  case  any  edition  after  the 
first  of  any  book  so  delivered  as  aforesaid  shall  contain 
any  addition  or  alteration,  it  shall  not  be  requisite  to  de- 
liver any  printed  copies  thereof,  if  one  printed  copy  of 
such  additions  or  alterations  only,  printed  in  an  uniform 
manner  with  the  former  edition  of  such  book,  be,  within 
a  time  in  that  behalf  to  be  prescribed  by  any  such  order 
in  council  as  aforesaid,  delivered  to  the  warehouse  keeper 
of  the  said  Company  of  Stationers. 

VII.  And  be  it  enacted.  That   the  respective  terms  to  Orders  in 

,  r     I  I  II-  1  •      1     <-       1      coiitKJlmay 

be  specined  by  such  orders  in  council  respectively  tor  tiie  specify 

continuance  of  the  privilecre  to  be   granted  to  the  authors  ^^'^crent 

^   '  •=.  .      '^  .  periods  for 

of  books   to   be  first  published  in  foreign  countries,  and  different 
their   respective  assigns,  may  be  difierent    for  books   first  t-ounmes 
published    in   ditFereiit   foreign   countries,   and    that    the  ^'^• 
times  to  be  prescril)ed    for   the  entry  of  the   titles  to  the 
copies  of  such  books,   and  the  delivery  to  the  said  ware- 
house keeper  of  the  aforesaid  copy,  may  be  dilVorent  for 


60  APPENDIX. 

different   foreign    countries   and   for  different  classes  of 
books. 

VIII.  And  be  it  enacted,  That  if  any  bookseller  or 
printer,  or  other  person  whatsoever,  in  any  part  of  the 
United  Kingdom  of  Great  Britain  and  Ireland,  or  in  any 
other  part  of  the  British  dominions,  shall,  within  the  term 
wYidi'orde'r  ^^  ^®  limited  by  any  such  order  in  council,  print,  reprint, 
in  council  or  import  for  sale,  or  cause  to  be  printed,  reprinted,  or 
without     '  imported  for  sale,  any  book  to  which  such  order  in  coun- 

consent  of    ^.jj  g\^^\\  extend,  without   the   consent   of  the   author   or 

proprietor,  ' 

liable  to       Other  proprietor  of  the  copyright  of  and  in.  such  book  first 

pena  ties.  ^^^  ^^^  obtained  in  writing,  or,  knowing  the  same  to  be 
so  printed,  reprinted,  or  imported  for  sale  without  such 
consent  of  such  author  or  other  proprietor,  shall  sell,  pub- 
lish, or  expose  to  sale,  or  cause  to  be  sold,  published,  or 
exposed  to  sale,  or  have  in  his  possession  for  sale,  any 
such  book  without  such  consent  first  had  and  obtained  as 
aforesaid,  then  every  such  offender  shall  be  liable  to  a 
special  action  on  the  case,  at  the  suit  of  the  author  or 
other  proprietor  of  the  copyright  of  and  in  such  book  so 
unlawfully  printed,  reprinted,  imported,  or  published  or 
exposed  to  sale,  or  being  in  the  possession  of  such  offend- 
er for  sale  as  aforesaid,  contrary  to  the  true  intent  and 
meaning  of  this  act;  and  every  such  author  or  other  pro- 
prietor shall  and  may,  by  and  in  such  special  action  on 
the  case  to  be  so  brought  against  such  offender  in  any 
court  of  record  in  that  part  of  the  said  United  Kingdom 
or  of  the  British  dominions  in  which  the  offence  shall  be 
committed,  recover  such  damages  as  the  jury  on  the  trial 
of  such  action  or  on  the  execution  of  a  writ  of  inquiry 
thereon  shall  give  or  assess,  together  with  double  costs  of 
suit,  in  which  action  no  privilege  or  protection  shall  be 
allowed ;  and  every  such  offender  shall  also  forfeit  such 
book,  and  every  sheet  being  part  of  such  book,  and  shall 
upon  order  of  any  court  of  record  in  which  any  action  at 
law  or  suit  in  equity  shall  be  commenced  or  prosecuted  by 
such  author  or  other  proprietor,  to  be  made  on  motion  or 
petition  to  the  said  court,  deliver  the  same  to  the  author 
or  other  proprietor  of  the  copyright  of  such  book,  or  to  his 


APPENDIX.  61 

attorney  or  agent  to  be  thereto  lawfully  authorized,  and  he      1  (St.  2 

shall  forthwith  damask  or  make  waste  paper  of  the  same  ;      Vict. 

and  every  such  ofiender  shall  also  forfeit  the  sura  of  three-  ^^^^jL, 

pence  for  every  sheet  thereof,  either  printed  or  printing, 

or  published  or  exposed  to  sale  contrary  to  the  true  in-  4 

tent  and  meaning  of  this  act ;  the  one  moiety  thereof  to 

her  Majesty,  and  the  other  moiety  thereof  to  any  person 

who  shall  sue  for  the  same  in  any  such  court  of  record  by 

action   of  debt,   bill,  plaint,  or   information,  in  which  no 

privilege  or  protection  shall  be  allowed  :  provided  always, 

that  in  Scotland  such  offender  shall  be  liable  to  an  action 

of  damages  in  the  court  of  Session  in  Scotland,  which 

shall   and   may  be  brought  and  prosecuted  in  the  same 

manner  in  which  any  other  action  of  damages  to  the  like 

amount  may  be  brought  and  prosecuted  there,  and  in  any 

such  action  where  damages  shall  be  awarded  double  costs 

of  suit  or  expenses  of  process  shall  be  allowed. 

IX.  Provided  always,  and  be  it  enacted.  That  no  such  No  order  in 
order  in  council  shall   have  any  effect  unless  it  shall  be  havrany" 
therein  stated,  as  the  ground  for  issuincr  the  same,  that  ^^'^^^  ^^' 
due  protection  for  the  benefit  of  the   authors  of  printed  states  that 
books  first  published   in  the  dominions  of  her  Majesty,  '''^ciprocal 
and  their  assigns,  has  been  secured  by  the  foreign  power  is  secured, 
in  whose  dominions  the  books  to  which  such  order  in 
council  shall  relate  shall  be  first  published. 

X.  And  be  it  enacted.  That  it  shall  be  lawful  for  her  Orders  ia 
•.,..,  ,.  1/-  council  may 
Majesty,  by  an  order  m  council,  Irom  time  to  time  to  re-  be  revoked. 

voke  or  alter  any  order  in  council  previously  made  under 
the  authority  of  this  act,  but  nevertheless  without  preju- 
dice to  any  rights  acquired  previously  to  such  revocation 
or  alteration. 

XI.  And  be  it  enacted.  That  every  order  in  council  to  Orders  in 

be  made  under  the  authority  of  this  act   shall,  as  soon  as  be'publish- 

may  be  after  the  making  thereof  by  her  Majesty  in  coun-  ^'^  ^'^  ^^- 

cil,  be  published  in  the  London  Gazette,  and  from  the  to  have 

time  of  such  publication  shall  have  the  same  effect  as  if  ^^"li'.cfloct 
'  .  as  tins  act. 

every  part  thereof  were  included  in  this  act. 

Orders  in 


XII.  And  be  it  enacted.  That  a  copy  of  every  order  of  "^'^*^" '" 

'  *  J  J  council  to 

be  laid 
before  pi 
liament. 


her  Majesty  in  council  made   under  this  act  shall  be  laid  be  laid 

r  before  par- 


62 


APPENDIX. 


1&,2 

Vict, 
c.  59. 


Transla- 
lions'if 

books  first 
published 
abroad. 


Foreign  au- 
thors not 
entitled  to 
copyright 
except  un- 
der this  act 


Limitation 
of  actions. 


Interpreta- 
tion clause. 


before  both  houses  of  parliament  within  six  weeks  after 
issuing  the  same  if  parliament  be  then  sitting,  and  if  not, 
then  within  six  weeks  after  the  commencement  of  the 
then  next  session  of  parliament. 

XIII.  Provided  always,  and  be  it  enacted,  that  nothing 
in  this  act  contained  shall  be  construed  to  prevent  the 
printing,  publication,  or  sale  of  any  translation  of  any 
book,  the  author  whereof  and  his  assigns  may  be  entitled 
to  the  benefit  of  this  act. 

XIV.  And  be  it  enacted,  That  the  author  of  any  book 
to  be  after  the  passing  of  this  act  first  published  out  of 
her  Majesty's  dominions,  or  his  assigns,  shall  have  no 
copyright  therein  within  her  Majesty's  dominions  other- 
wise than  such  (if  any)  as  he  may  become  entitled  to 
under  this  act. 

XV.  Provided  nevertheless,  and  be  it  enacted,  that  all 
actions,  suits,  bills,  indictments,  or  informations  for  any 
ofience  that  shall  be  committed  against  this  act  shall  be 
brought,  sued,  and  commenced  within  twelve  months 
next  after  such  offence  committed,  and  not  afterwards. 

XVI.  And  be  it  enacted,  That  in  the  construction  of 
this  act  the  word  "  book"  shall  be  construed  to  include 
"  volume,"  "  pamphlet,"  "  sheet  of  letter-press,"  "  sheet 
of  music,"  "  map,"  "  chart,"  or  "  plan"  ;  and  the  words 
"printing"  and  "reprinting"  shall  include  engraving 
and  any  other  method  of  multiplying  copies  ;  and  the  ex- 
pression "  her  Majesty  "  shall  include  the  heirs  and  suc- 
cessors of  her  Majesty  ;  and  the  expressions  "  order  of 
her  Majesty  in  council  "  and  "  order  in  council  "  shall 
respectively  mean  order  of  her  Majesty,  acting  by  and 
with  the  advice  of  her  Majesty's  most  honourable  privy 
council ;  and  in  describing  any  persons  or  things  any 
word  importing  the  plural  number  shall  mean  also  one 
person  or  thing,  and  any  word  importing  the  singular 
number  shall  include  several  persons  or  things,  and  any 
word  importing  the  masculine  shall  include  also  the  femi- 
nine gender  ;  unless  in  any  of  such  cases  there  shall  be 
something  in  the  subject  or  context  repugnant  to  such 
construction. 


APPENDIX.  63 

XVII.  And  be  it  enacted,  That  this  act  may  be  amend-     1  &,  2 
ed  or  repealed  by  any  act  to  be  passed   in   this  present      Vict 
session  of  parliament.  ^-  ^^• 

Act  niay*bc- 
amended 


64  APPENDIX. 

5  &  6  Vict.  c.  45.  — An  Act  to  amend  the  Law  of 
Copyright.  —  [1^^  July,  1842.] 

5&6     Whereas  it  is  expedient  to  amend  the  law  relating  to 
Vict.      copyright,  and  to  afford  greater  encouragement  to  the 
c.  45.      production  of  literary    works   of  lasting   benefit  to   the 
^■^"'^''"^^  world  ;  be  it  enacted  by  the  Queen's  most  excellent  Ma- 
jesty, by  and  with  the  advice   and   consent  of  the  lords 
spiritual  and  temporal,  and  commons,  in  this  present  par- 
liament assembled,  and   by  the  authority  of  the  same, 
Repeal  of    That  from  the  passing  of  this   act,  an   act  passed  in  the 
former  acts;  gjgj^jjj  yg^j.  of  the  reign  of  her  Majesty  Queen  Anne,  in- 
8  Anne,        tituled  "  An  Act  for  the  Encouragement  of  Learning,  by 

C.  19.  .  .  .  a'       J 

vesting  the  copies  of  printed  books  in  the  authors  or  pur- 
chasers of  such  copies  during  the  times  therein  mention- 
ed ;"  and  also  an  Act  passed  in  the  forty-first  year  of  the 
reign  of  his  Majesty  King  George  the  Third,  intituled 
G  III     "  ^^  ^^*  ^^^^  ^^^  further  Encouragement  of  Learning  in 

c.  107.  the  United  Kingdom  of  Great  Britain  and  Ireland,  by  se- 
curing the  copies  and  copyright  of  printed  books  to  the 
authors  of  such  books,  or  their  assigns,  for  the  time  therein 
mentioned ;"  and  also  an  act  passed  in  the  fifty-fourth 
year  of  the  reign  of  his  Majesty  King  George  the  Third, 

54  Geo.  III.  intituled  "  An  Act  to  amend  the  several  Acts  for  the  En- 
couragement of  Learning,  by  securing  the  copies  and 
copyright  of  printed  books  to  the  authors  of  such  books, 
or  their  assigns,"  be  and  the  same  are  hereby  repealed, 
except  so  far  as  the  continuance  of  either  of  them  may  be 
necessary  for  carrying  on  or  giving  effect  to  any  proceed- 
ings at  law  or  in  equity  pending  at  the  time  of  passing 
this  act,  or  for  enforcing  any  cause  of  action  or  suit,  or 
any  right  or  contract,  then  subsisting. 

Interpreta-        II.   And   be  it  enacted,  That  in   the  construction  of 

tionofact.  ^jjjg  act,  the  word  "book"  shall  be  construed  to  mean 
and  include  every  volume,  part  or  division  of  a  volume, 
pamphlet,  sheet  of  letter-press,  sheet  of  music,  map,  chart, 
or  plan  separately  published  ;  that  the  words  "  dramatic 
piece  "   shall  be   construed  to  mean   and  include  every 


APPENDIX.  65 

tragedy,  comedy,  play,  opera,  farce,  or  other  scenic,  niu-  5  &.  (» 
sical,  or  dramatic  entertainment ;  that  the  word  "  copy-  Vict, 
right"  shall  be  construed  to  mean  the  sole  and  exclusive  ^' 
liberty  of  printing  or  otherwise  multiplying  copies  of  any 
subject  to  which  the  said  word  is  herein  applied  ;  that 
the  words  "  personal  representative  "  shall  be  construed 
to  mean  and  include  every  executor,  administrator,  and 
next  of  kin  entitled  to  administration  ;  that  the  word 
"  assigns  "  shall  be  construed  to  mean  and  include  every 
person  in  whom  the  interest  of  an  author  in  copyright 
shall  be  vested,  whether  derived  from  such  author  before 
or  after  the  publication  of  any  book,  and  whether  acquir- 
ed by  sale,  gift,  bequest,  or  by  operation  of  law,  or  other- 
wise ;  that  the  words  "  British  dominions  "  shall  be  con- 
strued to  mean  and  include  all  parts  of  the  United  King- 
dom of  Gre.1t  Britain  and  Ireland,  the  islands  of  Jersey 
and  Guernsey,  all  parts  of  the  East  and  West  Indies,  and 
all  the  colonies,  settlements,  and  possessions  of  the  Crown 
which  now  are  or  hereafter  may  be  acquired  ;  and  that 
whenever  in  this  act,  in  describing  any  person,  matter, 
or  thing,  the  word  importing  the  singular  number  or  the 
masculine  gender  only  is  used,  the  same  shall  be  under- 
stood to  include  and  to  be  applied  to  several  persons  as 
well  as  one  person,  and  females  as  well  as  males,  and 
several  matters  or  things  as  well  as  one  matter  or  thing, 
respectively,  unless  there  shall  be  something  in  the  sub- 
ject or  context  repugnant  to  such  construction. 

III.  And  be  it  enacted.  That  the  copyright  in  every  tniluranc 
book  which  shall  after  the  passing  of  this  act  be  published  copyright 

in  the  lifetime  of  its   author  shall  endure   for  the  natural  inanv  book 

hereafter  to 

life  of  such  author,  and  for  the   further  term  of  seven  be  publish 

years,  commencing  at  the  time  of  his  death,  and  shall  be  ufe't^me'^of 

the  property   of  such  author  and  his  assigns :  provided  th*?  auilior ; 

always,  that  if  tlie  said  term  of  seven  years  shall  expire 

before  the  end  of  forty-two  years  from  the  first  publication 

of  such  book,  the  copyright  shall,  in  that  case,  endure  for 

such  period  of  forty-two  years  ;   and  that  the  copyright  in  if  published 

every  book  which  shall  be  published  after  the  death  of  its  ''"•^'"  ^^e 
L  1     11         1  z'        1  ■   n  r  author's 

author  shall  endure  tor  the  term  ol  forty-two  years  from  deatli 


66 


APPENDIX. 


5  &  G  the  first  publication  thereof,  and  shall  be  the  property  of 
^^'^l'  the  proprietor  of  the  author's  manuscript  from  which 
^^^1.^^*  such  book  shall  be  first  published,  and  his  assigns. 
In  cases  of  IV.  And  whereas  it  is  just  to  extend  the  benefits  of  this 
co^^r^Tf  act  to  authors  of  books  published  before  the  passing 
the  term  to  thereof,  and  in  which  copyright  still  subsists;  be  it  enact- 
ed, elccepi  ^^>  That  the  copyright  which  at  the  time  of  the  passing 
when  it  of  this  act  shall  subsist  in  any  book  theretofore  published 

shall  be-         ,  ,         .       ^  •  ix      ,     ,i    i  i     i        j 

long  to  an     (except  as  heremafter  mentioned)  shall  be  extended  and 

otheTcon-"^  endure  for  the  full  term  provided   by  this  act  in  cases  of 

sideration     books  thereafter  published,  and  shall  be  the  property  of 

love  and       the  person  who  at  the  time  of  passing  of  this  act  shall  be 

affection  ;     ^jjg  proprietor  of  such  copyright :  provided  always,  that 

case  it  shall  in  all  cases  in  which  such  copyright  shall  belong  in  whole 

expkaUola^  or  in  part  to  a  publisher  or  other  person  who  shall  have 

of  the  pre-    acquired  it  for  other  consideration   than  that  of  natural 

unless  its'    love  and  affection,  such  copyright  shall  not  be  extended 

extension     j^    ^j^j    ^^^  ^^^^  gj^^jj  g^dure  for  the  term  which  shall  sub- 
be  agreed  to     ^  ' 
between  the  sist   therein   at  the   time  of  passing  of  this  act,  and  no 

and''the°      longer,  unless  the  author  of  such  book,  if  he  shall  be  liv- 

author.        i^g,  or  the  personal  representative  of  such  author,  if  he 

shall  be  dead,  and  the  proprietor  of  such  copyright,  shall. 

before  the  expiration  of  such  term,  consent  and  agree  to 

accept  the  benefits  of  this  act  in  respect  of  such  book, 

and  shall  cause  a  minute  of  such  consent,  in  the  form   in 

that  behalf  given  in  the  schedule  to  this  act  annexed,  to 

be  entered  in  the  book  of  registry  hereinafter  directed  to 

be  kept,  in  which  case  such  copyright  shall  endure  for 

the  full  term  by  this  act  provided  in  cases  of  books  to  be 

published  after  the  passing  of  this  act,  and  shall  be  the 

property  of  such  person  or  persons  as  in  such  minute 

shall  be  expressed. 

Judicial  V.  And  whereas  it  is  expedient  to  provide  against  the 

of Th'e  privy  suppression  of  books  of  importance  to  the  public  ;  be  it 

council  may  enacted.  That  it  shall  be  lawful  for  the  Judicial  Commit- 

license  the  ^i        ht    ■  i     t.  •        ^  -i  i    •  i     . 

republica-  tee  of  her  Majesty  s  rnvy  Council,  on  complaint  made  to 
iion^of  them  that  the  proprietor  of  the  copyright  in  any  book 
which  the     after  the  death  of  its  author  has  refused  to  republish  or 

proprietor 

refuses    to    republish  after  death  of  the  author 


APPENDIX.  67 

to  allow  the  republication  of  the  same,  and  that  by  reason     5  &l  0 
of  such  refusal  such  book  may  be  withheld  from  the  pub-      Vict, 
lie,  to  grant  a  licence  to  such  complainant  to  publish      ^-  ^'^• 
such   book,  in   such   manner   and   subject  to  such  condi- 
tions as  they  may  think  fit,  and  that  it  shall  be  lawful  for 
such  complainant  to  publish  such  book  according  to  such 
licence. 

VI.  And  be  it  enacted,  Thai  a  printed  copy  of  the  Copies  of 
whole  of  every  book  which  shall  be  published  after  the  iished  aSr 
passing  of  this  act,  together  with  all  maps,  prints,  or  other  the  pssing 
engravings  belonging  thereto,  finished  and  coloured  inaiuiofall 
the  same  manner  as  the  best  copies  of  the  same  shall  be  cdh*i,Tn"^"/„ 
published,  and  also  of  any  second  or  subsequent  edition  be  delivered 
which  shall  be  so  published  with  any  additions  or  altera-  tain  timer 
tions,  whether  the  same  shall  be  in  letter-press,  or  in  the  ^}  ^'^^ 

'■  '  British 

maps,  prmts,  or  other  engravings  belonging  thereto,  and  Museum 
whether  the  first  edition  of  such  book  shall  have  been 
published  before  or  after  the  passing  of  this  act,  and  also 
of  any  second  or  subsequent  edition  of  every  book  of 
which  the  first  or  some  preceding  edition  shall  not  have 
been  delivered  for  the  use  of  the  British  Museum,  bound, 
sewed,  or  stitched  together,  and  upon  the  best  paper  on 
which  the  same  shall  be  printed,  shall,  within  one  calen- 
dar month  after  the  day  on  which  any  such  book  shall 
first  be  sold,  published,  or  offered  for  sale  within  the  bills 
of  mortality,  or  within  three  calandar  months  if  the  same 
shall  first  be  sold,  published  or  offered  for  sale  in  any 
other  part  of  the  United  Kingdom,  or  within  twelve  cal- 
endar months  after  the  same  shall  first  be  sold,  published, 
or  offered  for  sale  in  any  other  part  of  the  British  domin- 
ions, be  delivered,  on  behalf  of  the  publisher  thereof,  at 
the  British  Museum. 

VII.  And  be  it  enacted,   That  every  copy  of  any  book  Mode  of  de- 
which  under  the  provisions  of  this  act  ought  to  be  deliv-  tiR^ilmish 
ered  as  aforesaid  shall  be  delivered  at  the  British  Museum  Museum. 
between  the  hours  of  ten  in  the  forenoon  and  four  in  the 
afternoon   on   any  day  except   Sunday,  Ash  Wednesday, 

Good  Friday,  and  Christmas  Day,   to  one  of  the  officers 
of  the  said  Museum,  or  to  some  person  authorized  by  the 


68  APPENDIX. 

5&,6     trustees  of  the  said  Museum  to  receive  the  same ;  and 

Vict,      such  officer  or  other  person  receiving  such  copy  is  here- 

c.  4o.      ^y  required  to  <rive  a  receipt  in  writing  for  the  same,  and 

such  delivery  shall  to  all  intents  and  purposes  be  deemed 

to  be  good  and  sufficient  delivery  under  the  provisions  of 

this  act. 

r         VIII.  And  be  it  enacted,  That  a  copy  of  the  whole  of 

A  copy  ol  11  T  ■  c 

every  book  every  book,  and  of  any  second  or  subsequent  edition  ol 
ere/withm  of  every  book  containing  additions  and  alterations,  toge- 
a  month  ther  with  all  maps  and  prints  belonging  thereto,  which 
mandtothc  after  the  passing  of  this  act  shall  be  published,  shall,  on 
officer  of  the  (jg^jand  thereof  in  writing,  left  at  the  place  of  abode  of 

Stationers'  .  .      . 

Company,  the  publisher  thereof  at  any  time  within  twelve  months 
lowing  °  next  after  the  publication  thereof,  under  the  hand  of  the 
libraries :  officer  of  the  Company  of  Stationers,  who  shall  from  time 
^^^Bo<i^-  .         1  •         ,    1        I  -1  r      .u 

leianatOx-  to  time  be  appointed  by  the  said   company  tor  the  pur- 

Pubiic^Li-    poses  of  this  act,  or  under  the  hand  of  any  other  person 
brary  at       thereto  authorized  by  the  persons  or  bodies  politic  and 
the  Faculty  corporate,  proprietors  and  managers  of  the  libraries  fol- 
of  Advo-      lowincr,  (videlicet,)   the  Bodleian  Library  at  Oxford,  the 
Edinburgh,  Public  Library  at  Cambridge,  the  library  of  the  Faculty 
Trinify^  °^  of  Advocates  at  Edinburgh,  the  library  of  the  College  of 
College,       the  Holy  and  Undivided  Trinity  ofClueen  Elizabeth  near 
Dublin,  be  delivered  upon  the  paper  of  which  the  largest 
number  of  copies  of  such  book  or  edition  shall  be  printed 
for  sale,  in  the  like  condition  as  the  copies  prepared  for 
sale   by  the  publisher  thereof  respectively,   within  one 
month  after  demand  made  thereof  in  writing  as  aforesaid, 
to  the  said  officer  of  the  said  Company  of  Stationers  for 
the  time  being,  which  copies  the  said  officer  shall  and  he 
is  hereby  required  to  receive  at  the  hall  of  the  said  com- 
pany, for  the  use  of  the  library  for  which  such  demand 
shall  be  made  within  such  twelve  months  as  aforesaid  ; 
and  the  said  officer  is  hereby  required  to  give  a  receipt 
in  writing  for  the  same,   and  within  one  month  after  any 
such  book  shall  be  so  delivered  to  him  as  aforesaid  to  de- 
liver the  same  for  the  use  of  such  library. 

IX.  Provided  also,  and  be  it  enacted,  That  if  any  pub- 
lisher shall  be  desirous  of  delivering  the  copy  of  such 


APPENDIX.  69 

book  as  sliall   be  demanded  on  behalf  of  any  of  the  said     5&-  6 
libraries  at  such  library,   it  shall  be  lawful   for  him  to  de-      Vict, 
liver  the  same  at   such  library,  free  of  expence,  to  such      ^' 
librarian  or  other  person  authorized  to  receive  the  same  Publishers 
(who  is  hereby  required  in  such  case  to  receive  and  give  "layielivt-r 

"  \         1  1      1    I  •  1  ^'"-'  copies 

a  receipt  in  writing  fi)r  the  same,)  and  such  delivery  shall  tothelibra- 

to  all  intents  and  purposes  of  this  act  be  held  as  equiva-  "f  a/J'he^'"' 

lent  to  a  delivery  to  the  said   officer  of  the  Stationers'  Stationers' 
^,  Company 

Company.  '^ 

X.  And   be   it   enacted.  That  if  any  publisher  of  any  Penaltv  for 

such  book,  or  of  any  second  or  subsequent  edition  of  any  default  in 
L  1       I        1     11  1  11-  1  deliveriutf 

such  book,  shall  neglect  to  deliver  the  same,  pursuant  to  copies  for 
this  act,  he  shall   for  every  such   default  forfeit,  besides  Jj    rt^."' 
the  value  of  such  copy  of  such  book  or  edition  which  he  ries. 
ought  to  have  delivered,  a  sum  not  exceeding  five  pounds, 
to  be  recovered  by  the  librarian  or  other  officer  (properly 
authorized)  of  the  library  for  the  use  whereof  such  copy 
should   have  been  delivered,  in  a  summary  way,  on  con- 
viction before  two  justices  of  the  peace  for  the  county  or 
place  where  the  publisher  making  default  shall  reside,  or 
by  action  of  debt  or  other  proceeding  of  the  like  nature, 
at  the  suit  of  such  librarian  or  other  officer,  in  any  court 
of  record   in   the   United   Kingdom  ;   in  which  action,  if 
the  plaintiff  shall  obtain  a  verdict,  he  shall  recover   his 
costs  reasonably  incurred,  to  be  taxed  as  between  attor- 
ney and  client. 

XI.  And   be  it  enacted.    That    a    book  of  registry.  Book  of  re- 
vvherein  may  be  registered,  as  hereinafter  enacted,  the  tppt'at 
proprietorship  in  the  copyright  of  books,  and  assignments  Stationers' 
thereof,  and  in  dramatic  and  musical  pieces,  whether  in 
manuscript  or  otherwise,  and  licences  affecting  such  copy- 
right, shall  be  kept  at  the  hall  of  the  Stationers'  Company 

by  the  officer  appointed  by  the  said  company  for  the  pur- 
poses of  this  act,  and  shall  at  all  convenient  times  be  open 
to  the  inspection  of  any  person,  on  payment  of  one  shilling 
for  every  entry  which  shall  be  searched  for  or  inspected  in 
the  said  book  ;  and  that  such  officer  shall,  whenever  there- 
unto reasonably  required,  give  a  copy  of  any  entry  in  such 
book,  certified   under  his  hand,  and  impressed   with   tlie 


70  APPENDIX. 

5&6     stamp  of  the  said  company,  to  be  provided  by  them  for 
Vict,      that  purpose,  and  which  they  are  hereby  required  to  pro- 
^"  ^^1,  vide,  to  any  person  requiring  the  same,  on  payment  to 
him  of  the  sum  of  five  shillings  ;  and  such  copies  so  cer- 
tified and  impressed  shall  be  received   in  evidence  in  all 
courts,  and  in  all   summary  proceedings,   and  shall  be 
prima  facie  proof  of  the  proprietorship  or  assignment  of 
copyright  or  licence  as  therein  expressed,  but  subject  to 
be  rebutted  by  other  evidence,  and  in  the  case  of  drama- 
tic or  musical  pieces  shall    be  prima  facie  proof  of  the 
right  of  representation  or  performance,  subject  to  be  re- 
butted as  aforesaid. 
Making  a         XII.  And  be  it  enacted.  That  if  any  person  shall  vvil- 
false  entry    |-yjjy  i^^ke  or  cause  to  be   made   any  false  entry  in  the 
of  registry    registry  book  of  the  Stationers'  Company,  or  shall  wilfully 
meanon       produce  or  cause  to  be  tendered  in   evidence  any  paper 
falsely  purporting  to  be  a  copy  of  any  entry  in  the  said 
book,  he  shall   be  guilty  of  an  indictable  misdemeanor, 
and  shall  be  punished  accordingly. 
Entries  of        XIII.  And  be  it  enacted,  That  after  the  passing  of  this 
may  be^^     act  it  shall  be  lawful  for  the  proprietor  of  copyright  in 
made  in  the  any  book  heretofore  published,  or  in  any  book  hereafter 
re^stry.      to  be  published,  to  make  entry  in  the  registry  book  of  the 
Stationers'  Company  of  the  title  of  such  book,  the  time  of 
the  first  publication  thereof,  the  name  and  place  of  abode 
of  the  publisher  thereof,  and  the  name  and  place  of  abode 
of  the  proprietor  of  the  copyright  of  the  said  book,  or  of 
any  portion  of  such  copyright,  in  the  form  in  that  behalf 
given  in  the  schedule  to  this  act  annexed,  upon  payment 
of  the  sum  of  five  shillings  to  the  officer  of  the  said  com- 
pany ;  and  that  it  shall  be  lawful  for  every  such  register- 
ed proprietor  to  assign  his  interest,  or   any  portion  of  his 
interest  therein,  by  making  entry  in  the  said  book  of  re- 
gistry of  such  assignment,  and  of  the  name  and  place  of 
abode  of  the   assignee  thereof,  in  the  form  given  in  that 
behalf  in  the  said  schedule,  on  payment  of  the  like  sum  ; 
and  such  assignment  so  entered  shall  be  effectual  in  law 
to  all  intents  and  purposes  whatsoever,   without   being 
subject  to  any  stamp  or  duty,  and  shall  be  of  the  same 


APPENDIX.  71 

force  and  effect  as  if  such  assignment  had  been  made  by    5  &,  6 
deed.  Vict. 

XIV.  And  be  it  enacted.  That  if  any  person  shall      ^-  '^'*- 
deem  himself  aggrieved  by  any  entry  made  under  color  of  persons 
this  act  in  the  said  book  of  resistry,  it  shall  be  lawful  for  pS'-jfeved 
such  person  to  apply  by  motion  to  the  Court  of  Queen's  try  in 'the 
Bench,  Court  of  Common  Pleas,  or  Court  of  Exchequer,  ,^°s°ry°maY 
in  term  time,  or  to  apply  by  summons  to  any  judge  of  apply  to  a 

.  .  ^  ,  .  ^  *   -^       .        ■  ,         .  I    court  of  law 

either  ot  such  courts  in  vacation,  tor  an  order  that  such  in  term,  or 

entry  may  be  expunged  or  varied;  and  that  upon  any  J"'''V° 

such  application  by  motion  or  summons  to  either  of  the  who  may 

said  courts,  or  to  a  judge  as  aforesaid,  such  court  or  g^iry  to  be 

iudwe  shall  make  such  order  for  expunsinor,  varyinjj,  or  varied  or 
•'      °        .  ,  .  ,  .  ,       ^      =     "  •'     °  expunged, 

confirming  such  entry,  either  with  or  without  costs,  as  to 

such  court  or  judge  shall  seem  just ;  and  the  officer  ap- 
pointed by  the  Stationers'  Company  for  the  purposes  of 
this  act  shall,  on  the  production  to  him  of  any  such  order 
for  expunging  or  varying  any  such  entry,  expunge  or  vary 
the  same  according  to  the  requisitions  of  such  order. 

XV.  And  be  it  enacted,  That  if  any  person  shall,  in  Remedy  for 
any  part  of  the  British  dominions,  after  the  passing  of  of^books  by 

this  act,  print  or  cause  to  be  printed,  either  for  sale  or  !i,«:non  on 
.  .  .  .     .        the  case, 

exportation,  any  book  in  which  there  shall  be  subsisting 

copyright,  without  the  consent  in  writing  of  the  proprie- 
tor thereof,  or  shall  import  for  sale  or  hire  any  such  book 
so  having  been  unlawfully  printed  from  parts  beyond  the 
sea,  or,  knowing  such  book  to  have  been  so  unlawfully 
printed  or  imported,  shall  sell,  publish,  or  expose  to  sale 
or  hire,  or  cause  to  be  sold,  published,  or  exposed  to  sale 
or  hire,  or  shall  have  in  his  possession,  for  sale  or  hire, 
any  such  book  so  unlawfully  printed  or  imported,  without 
such  consent  as  aforesaid,  such  offender  shall  be  liable  to 
a  special  action  on  the  case  at  the  suit  of  the  proprietor 
of  such  copyright,  to  be  brought  in  any  court  of  record 
in  that  part  of  the  British  dominions  in  which  the  offence 
shall  be  committed  :  provided  always,  that  in  Scotland 
such  offender  shall  be  liable  to  an  action  in  the  Court  of 
Session  in  Scotland,  which  shall  and  may  be  brought  and 
prosecuted  in  the  same  manner  in  which  any  other  action 


72 


APPENDIX. 


In  actions 
for  piracy 
the  defend- 
ant to  give 
notice  of 
the  objec- 
tions to  the 
plaintiff's 
title  on 
which  he 
means  to 
rely. 


No  person 
except  the 
proprie- 


of  damages  to  the  like   amount  may  be  brought  and  pro- 
secuted there. 

XVI.  And  be  it  enacted,  That  after  the  passing  of  this 
act,  in  any  action  brought  within  the  British  dominions 
against  any  person  for  printing  any  such  book  for  sale, 
hire,  or  exportation,  or  for  importing,  selling,  publishing, 
or  exposing  to  sale  or  hire,  or  causing  to  be  imported, 
sold,  published,  or  exposed  to  sale  or  hire,  any  such  book, 
the  defendant,  on  pleading  thereto,  shall  give  to  the  plain- 
tiff a  notice  in  writing  of  any  objections  on  which  he 
means  to  rely  on  the  trial  of  such  action  ;  and  if  the  na- 
ture of  his  defence  be,  that  the  plaintiff  in  such  action 
was  not  the  author  or  first  publisher  of  the  book  in  which 
he  shall  by  such  action  claim  copyright,  or  is  not  the  pro- 
prietor of  the  copyright  therein,  or  that  some  other  person 
than  the  plaintiff  was  the  author  or  first  publisher  of  such 
book,  or  is  the  proprietor  of  the  copyright  therein,  then 
the  defendant  shall  specify  in  such  notice  the  name  of  the 
person  who  he  alleges  to  have  been  the  author  or  first 
publisher  of  such  book,  or  the  proprietor  of  the  copyright 
therein,  together  with  the  title  of  such  book,  and  the  time 
when  and  the  place  where  such  book  was  first  published, 
otherwise  the  defendant  in  such  action  shall  not  at  the 
trial  or  hearing  of  such  action  be  allowed  to  give  any 
evidence  that  the  plaintiff  in  such  action  was  not  the  au- 
thor or  first  publisher  of  the  book  in  which  he  claims 
such  copyright  as  aforesaid,  or  that  he  was  not  the  pro- 
prietor of  the  copyright  therein ;  and  at  such  trial  or 
hearing  no  other  objection  shall  be  allowed  to  be  made  on 
behalf  of  such  defendant  than  the  objections  stated  in 
such  notice,  or  that  any  other  person  was  the  author  or 
first  publisher  of  such  book,  or  the  proprietor  of  the  copy- 
right therein,  than  the  person  specified  in  such  notice,  or 
give  in  evidence  in  support  of  his  defence  any  other  book 
than  one  substantially  corresponding  in  title,  time,  and 
place  of  publication  with  the  title,  time,  and  place  speci- 
fied in  such  notice. 

XVII.  And  be  it  enacted,  That  after  the  passing  of 
this  act  it  shall   not  be  lawful  for  any  person,  not  being 


APPENDIX.  73 

the  proprietor  of  tlie  copyriglit,  or  some  person  autliorizcd     .j&-  G 
by  him,  to  import   into  any  part  of  tlie  United  Kingdom,      Vict, 
or  into  any  other  part  of  tiic  Britisii  dominions,  for  sale      ^-  '*'*■ 
or  hire,  any  printed  book  first  composed  or  written   or  (^f  ^^ 
printed   and  published  in   any   part  of  the  said  United  ^liall  im- 
Kingdom,  wherein  there  shall  be  copyright,  and  reprinted  ihu  British 
in  any  country  or  place  whatsoever  out  of  the  Britisii  do-  fo^/^alg^oj 
minions ;  and  if  any  person,  not  being  such  proprietor  or  ''ire  any 
person  authorized  as  aforesaid,  shall   import  or  bring,  or  composed, 
cause  to  be  imported  or   broujiht,  for   sale  or  hire,  any  '^*^- ^J'".'''" 

.  '  ■=     '  ..'.-'    the  United 

such  prmted   book,  into  any  part  of  the  British  domin-  Kingdom, 

ions,  contrary  to  the  true  intent  and  meaning  of  this  act,  ed'eUe-""^ 

or  shall  knowingly  sell,  publish,  or  expose  to  sale  or  let  to  where, 

,  .  II-  •        r  1  1  •  1    under  pen- 

nire,  or  nave  m  his  possession  lor  sale  or  hire,  any  such  ahy  of 
book,  then  every  such  book  shall  be  forfeited,  and  shall  [^'''•^""/c 

.  •'  .  thereof,  and 

be  seized  by  any  otBcer  of  customs  or  excise,  and  the  also  of  lo/. 

same  shall   be  destroyed   by  such  oflicer  ;  and  every  per-  jjjg  value. 

son  so  offendincr,  being  duly  convicted  thereof  before  two  „    i 

o>  o         J  Books  may 

justices  of  the  peace   for   the   county  or  place   in  which  be  seized 
such  book  shall  be  found,  shall  also  for  every  such  offence  oi^ customs 
forfeit  the  sum  of  ten  pounds,  and  double  the  value  of  or  excise, 
every  copy  of  such   book   which   he   shall   so   import  or 
cause  to  be  imported  into   any  part  of  the  British  domin- 
ions, or  shall  knowingly  sell,  publish,  or  expose  to  sale 
or  let  to  hire,  or  shall  cause  to  be  sold,  published,  or  ex- 
posed to  sale  or  let  to  hire,  or  shall   have  in  his  posses- 
sion for  sale  or  hire,  contrary   to  the  true    intent  and 
meaning  of  this  act,  five  pounds  to  the  use  of  such  officer 
of  customs  or  excise,  and  the  remainder  of  the  penalty  to 
the  use  of  the  proprietor  of  the  copyright  in  such  book. 

XVIII.  And  be  it  enacted.  That  when  any  publisher  as  to  the 
or  other  person  shall,  before  or  at  the  time  of  the  passing  copyright 

^  '  .     *  =»  in  encyclo- 

of  this  act,  have  projected,  conducted,  and  carried  on,  or  pa'dias,  pc- 
shall   hereafter  project,  conduct   and   carry  on,  or  be  the  "ml  works 
proprietor  of  any  cncyclopajdia,  review,  magazine,  peri-  punished 
odical  work,  or  work  published  in   a  series  of  books  or  rcviuw-s,  or' 
parts,  or  any  book  whatsoever,  and  shall   have  employed  "lagazincs. 
or  shall  employ  any  persons  to  compose  the  same,  or  any 
volumes,  parts,   essays,  articles,  or  portions  thereof,  for 
g 


74 


APPENDIX. 


5  &  6  publication  in  or  as  part  of  the  same,  and  such  work, 
Vict.  volumes,  parts,  essays,  articles,  or  portions  shall  have 
^J^J^  been  or  shall  hereafter  be  composed  under  such  employ- 
ment, on  the  terms  that  the  copyright  therein  shall  be- 
long to  such  proprietor,  projector,  publisher,  or  conductor, 
and  paid  for  by  such  proprietor,  projector,  publisher,  or 
conductor,  the  copyright  in  every  such  encyclopsedia,  re- 
view, magazine,  periodical  work,  and  work  published  in 
a  series  of  books  or  parts,  and  in  every  volume,  part,  es- 
say, article,  and  portion  so  composed  and  paid  for,  shall 
be  the  property  of  such  proprietor,  projector,  publisher, 
or  other  conductor,  who  shall  enjoy  the  same  rights  as  if 
he  were  the  actual  author  thereof,  and  shall  have  such 
term  of  copyright  therein  as  is  given  to  the  authors  of 
books  by  this  act ;  except  only  that  in  the  case  of  essays, 
articles,  or  portions  forming  part  of  and  first  published  in 
reviews,  magazines,  or  other  periodical  works  of  a  like 
nature,  after  the  term  of  twenty-eight  years  from  the  first 
publication  thereof  respectively  the  right  of  publishing 
the  same  in  a  separate  form  shall  revert  to  the  author  for 
the  remainder  of  the  term  given  by  this  act :  provided 
always,  that  during  the  term  of  twenty-eight  years  the 
said  proprietor,  projector,  publisher,  or  conductor  shall 
not  publish  any  such  essay,  article,  or  portion  separately 
or  singly  without  the  consent  previously  obtained  of  the 
Proviso  for  author  thereof,  or  his  assigns  :  provided  also,  that  nothing 
vvho°hav6  herein  contained  shall  alter  or  affect  the  right  of  any 
reserved       person  who  shall  have  been  or  who  shall  be  so  employed 

the  right  of  *^       „  .  ,  ,  ,.  ,  ...  ... 

puhlishiiig    as  aforesaid  to  publish  any  such  his  composition  m  a  sep- 
their  arti-     jjrate  form,  who  by  any  contract,  express  or  implied,  may 
separate       have  reserved  or  may  hereafter  reserve  to  himself  such 
right;  but  every  author  reserving,   retaining,  or  having 
such  right  shall  be  entitled  to  the  copyright  in  such  com- 
position when  published  in  a  separate  form,  according  to 
this  act,  without  prejudice  to  the  right  of  such  proprietor, 
projector,  publisher,  or  conductor  as  aforesaid. 
Proprietors       XIX.  And  be  it  enacted.  That  the  proprietor  of  the 
ofencyclo-    copyright  in  any  encyclopaedia,  review,  magazine,  period- 
rioclical's,      ical  work,  or  other  work  published  in  a  series  of  books 


APPENDIX.  iO 

or  parts,  shall  be  entitled  to  all  the  benefits  of  the  regis- 
tration a  Stationers'  Hall  under  this  act,  on  entering  in 
the  said  book  of  registry  the  title  of  such  cnc}'cl()i);udia, 
review,  periodical  work,  or  other  work  published  in  a  .^^  JoruT 
series  of  books  or  parts,  the  time  of  the  first  publication  pui'lisheii 
of  the  first  volume,  number,  or  part  thereof,  or  of  the  first  niajfiiter 
number  or  \olume  first  published  after  the  i)a.«sin<r  of  this  ^^ """  at 
act  in  any  such  work  which  shall  have  been  published  Hall.aDcl 
heretofore,  and  the  name  and  place  of  abode  of  the  pro-  \,ave"ue 
prietor   thereof,  and  of  the  publisher  thereof,  when  such  •"^'i'  fit  "i' 

.  the  re^is- 

publisher  shall  not  also  be  the  proprietor  thereof.  uation  of 

XX.  And  whereas  an  act  was  passed  in  the  third  year  ^^^  ^^'hole. 
of  the  reign  of  his  late  Majesty,  to  amend  the  law  relating  ^ons'of  3  & 
to  dramatic  literary  property,  and  it  is  expedient  to  ex-  "J  W.  iv. 
tend  the  term  of  tiie  sole  liberty  of  representing  dramatic  lentic'ii  v, 
pieces  given  by  that  act  to  tiie  full  time  by  this  act  pro-  '""""^'il. 
vided  for  the  continuance  of  copyright :  and  whereas  it  is  lions,  and 
expedient  to  extend  to  musical  compositions  the  benefits  copyri"ht"' 
of  that  act,  and  also  of  this  act ;  be  it  therefore  enacted,  j'^^  provideil 
That  the  provisions  of  the  said  act  of  his  late  Majesty,  applied  to 
and  of  this  act,  shall  apply  to  musical  compositions,  and    f  ''''er'y 
that  the  sole  liberty  of  representing  or  performing,  or  sentingdra- 
causing  or  permitting  to  be  represented  or  performed,  any  -Midnvlsi^^ 
dramatic  piece  or  musical  composition,  shall  endure  and  '^^\  «'"'^r"- 

,  »  sitions. 

be  the  property  of  the  author  thereof,  and  his  assigns,  for 
the  term  in  this  act  provided  for  the  duration  of  copyright 
in  books  ;  and  the  provisions  hereinbefore  enacted  in  re- 
spect of  the  property  of  such  copyright,  and  of  registering 
the  same,  shall  apply  to  the  liberty  of  representing  or  per- 
forming any  dramatic  piece  or  musical  composition,  as  if 
the  same  were  herein  expressly  enacted  and  applied 
thereto,  save  and  except  that  the  first  public  representa- 
tion or  performance  of  any  dramatic  piece  or  musical 
composition  shall  be  deemed  equivalent,  in  the  construc- 
tion of  this  act,  to  the  first  publication  of  any  book  : 
provided  always,  that  in  case  of  any  dramatic  piece  or 
musical  composition  in  manuscript,  it  shall  be  sufficient 
for  the  person  having  the  sole  liberty  of  representing  or 
performing,  or  causing  to  be  represented  or  performed  the 


76  APPENDIX. 

5  &  6     same,  to  register  only  the  title  thereof,  the  name  and  place 

Vict.      of  abode  of  the  author  or  composer  thereof,  the  name  and 

^-  ^^"     place  of  abode  of  the  proprietor  thereof,  and  the  time  and 

place  of  its  first  representation  or  performance. 

Proprietors       XXI.  And  be  it  enacted.  That  the  person  who  shall  at 

dranfatic"     any  time  have  the  sole  liberty  of  representing  such  dra- 

represenia-  j^atic  piece  or  musical  composition  shall  have  and  enjoy 

tions  shall  '  ,  •  i     i  •       i  •  i  r     u 

have  all  the  the  remedies  given  and  provided  m  the  said  act  ot  the 
gi^e'if  bT  3    third  and  fourth  years  of  the  reign  of  his  late  Majesty 
&4W."IV.  King  William  the  Fourth,  passed  to  amend  the  laws  re- 
lating to  dramatic  literary  property,  during  the  whole  of 
his  interest  therein,  as  fully  as  if  the  same  were  re-enacted 
in  this  act. 
Assign-  XXII.  And  be  it  enacted.  That  no  assignment  of  the 

^pyWght     copyright  of  any  book  consisting  of  or  containing  a  dra- 

of  a  drama-  niatic  piece  or  musical   composition   shall  be  holden  to 

tic  DiGCG  not 

to  convey  convey  to  the  assignee  the  right  of  representing  or  per- 
the  right  of  forming  such  dramatic  piece  or  musical  composition,  un- 
tion.  less  an  entry  in  the  said  registry  book  shall  be  made  of 

such  assignment,  wherein  shall  be  expressed  the  intention 
of  the  parties  that  such  right  should  pass  by  such  assign- 
ment. 
Books  pi-  XXIII.  And  be  it  enacted,  That  all  copies  of  any  book 
beSlife  die  wherein  there  shall  be  copyright,  and  of  which  entry  shall 
property  of  j^^^g  j^ggj^  made  in  the  said  registry  book,  and  which 
the  propric-  ...  ,       ., 

tor  of  the     shall   have  been   unlawfully  printed  or  imported  without 
an^^maj^bc  the  consent  of  the  registered  proprietor  of  such  copyright, 
recovered     \^  writing  under  his  hand  first  obtained,  shall  be  deemed 
y  ac  ion.     ^^  ^^  ^^^  property  of  the  proprietor  of  such  copyright, 
and  who  shall  be  registered  as  such,  and  such  registered 
proprietor  shall,  after  demand  thereof  in  writing,  be  enti- 
tled to  sue  for  and  recover  the  same,  or  damages  for  the 
detention  thereof,  in  an  action  of  detinue,  from  any  party 
who  shall  detain  the  same,  or  to  sue  for  and  recover  dam- 
ages for  the  conversion  thereof  in  an  action  of  trover. 
Noproprie-      XXIV.  And  be  it  enacted.  That  no  proprietor  of  copy- 
I?"hf  c^fZ-'  right  in  any  book  which  shall  be  first  published  after  the 

mencinK  . 

after  this  act  shall  sue  or  proceed  for  any  inirmge- 
ment  before  making  entry  in  the  book  of  registry. 


APPENDIX.  77 

passing  of  this  act  shall  maintain  any  action  or  suit,  at     -j  &-  0 
law  or  in  equity,  or  any  summary  proceeding,  in  respect      Vict, 
of  any  infringement  of  such  copyright,  unless  he  shall,      ^  ^^*- 
before  commencing  such  action,  suit,  or  proceeding,  have 
caused   an  entry  to  be  made,  in  the  book  of  registry  of 
the  Stationers'  Company,  of  such  book,  pursuant  to  this 
act  :    provided   always,  that   the   omission  to  make  such 
entry  shall  not  affect  the  copyright  in  any  book,  but  only 
the  right  to  sue  or  proceed  in  respect  of  the  infringe- 
ment thereof  as  aforesaid  :   provided  also,  that  nothing  Proviso  for 
herein  contained  shall  prejudice  the  remedies  which  the  '^F^'"'^*"^ 

•^     J  pieces. 

proprietor  of  the  sole  liberty  of  representing  any  dramatic 
piece  shall  have  by  virtue  of  the  act  passed  in  the  third 
year  of  the  reign  of  his  late  Majesty  King  William  the 
Fourth,  to  amend  the  laws  relating  to  dramatic  literary 
property,  or  of  this  act,  although  no  entry  shall  be  made 
in  the  book  of  registry  aforesaid. 

XXV.  And  be  it  enacted.  That  all  copyright  shall  be  Copyright 
deemed  personal  property,  and  shall  be  transmissible  by  pergonal 
bequest,  or,  in  case  of  intestacy,  shall  be  subject  to  the  proi'^^rty. 
same  law  of  distribution  as  other  personal   property,  and 

in  Scotland  shall  be  deemed  to  be  personal  and  moveable 
estate. 

XXVI.  And  be  it  enacted.  That  if  any  action  or  suit  General 
shall  be  commenced  or  brought  against  any  person  or  '^^"*^" 
persons  whomsoever  for  doing  or  causing  to  be  done  any 
thing  in  pursuance  of  this  act,  the  defendant  or  defend- 
ants in  such  action  may  plead  the  general  issue,  and  give 

the  special  matter  in  evidence  ;    and  if  upon  such  action 
a  verdict  shall  be  given  for  the  defendant,  or  the  plaintiff 
shall   become  nonsuited,  or  discontinue  his  action,  then 
the  defendant  shall   have  and  recover  his  full  costs,  for 
which  he  shall   have  the  same  remedy  as  a  defendant  in 
any  case  by  law  hath  ;    and  that   all   actions,  suits,  bills,  Limitation 
indictments,  or  informations  for  any  offence  that  shall  be  °^  "^tions; 
committed   against  this  act  shall  be  brought,  sued,  and 
commenced  within  twelve  calendar  months  next  after  such 
offence  committed,  or  else  the  same  shall  be  void  and  of 
none  effect :    provided  that  such  limitation  of  time  shall 
g* 


78 


APPENDIX. 


uot  to  ex- 
tend to  ac- 
tions, &c. 
in  respect 
of  the  deli- 
very of 
books. 

Saving  the 
rights  of 
the  Univer- 
sities, and 
the  colleges 
of  Eton, 
Westmin- 
ster, and 
Winches- 
ter. 


Saving  all 
subsisting 
rights,  con- 
tracts, and 
engage- 
ments. 


Extent  of 
the  act. 


Act  may  be 
amended 
this  ses- 


not  extend  or  be  construed  to  extend  to  any  actions,  suits, 
or  other  proceedings  which  under  the  authority  of  this 
act  shall  or  may  be  brought,  sued,  or  commenced  for  or 
in  respect  of  any  copies  of  books  to  be  delivered  for  the 
use  of  the  British  Museum,  or  of  any  one  of  the  four 
libraries  hereinbefore  mentioned. 

XXVII.  Provided  always,  and  be  it  enacted,  That  no- 
thing in  this  act  contained  shall  affect  or  alter  the  rights 
of  the  two  universities  of  Oxford  and  Cambridge,  the  col- 
leges or  houses  of  learning  within  the  same,  the  four  uni- 
versities in  Scotland,  the  college  of  the  Holy  and  Undi- 
vided Trinity  of  Q,ueen  Elizabeth  near  Dublin,  and  the 
several  colleges  of  Eton,  Westminster,  and  Winchester, 
in  any  copyrights  heretofore  and  now  vested  or  hereafter 
to  be  vested  in  such  universities  and  colleges  respect- 
ively, any  thing  to  the  contrary  herein  contained  notwith- 
standing. 

XXVIII.  Provided  also,  and  be  it  enacted,  That  no- 
thing in  this  act  contained  shall  affect,  alter,  or  vary  any 
right  subsisting  at  the  time  of  passing  of  this  act,  except 
as  herein  expressly  enacted ;  and  all  contracts,  agree- 
ments, and  obligations  made  and  entered  into  before  the 
passing  of  this  act,  and  all  remedies  relating  thereto,  shall 
remain  in  full  force,  any  thing  herein  contained  to  the 
contrary  notwithstanding. 

XXIX.  And  be  it  enacted,  that  this  act  shall  extend  to 
the  United  Kingdom  of  Great  Britain  and  Ireland,  and  to 
every  part  of  the  British  dominions. 

XXX.  And  be  it  enacted,  That  this  act  may  be 
amended  or  repealed  by  any  act  to  be  passed  in  the  pre- 
sent session  of  parliament. 


APPENDIX. 


79 


Schedule  to  which  the  preceding-  art  refers. 


No.  1. 

FORM  OF  MmUTE  OF  CONSENT   TO    BE  ENTERED  AT  STATIONERS'  HAL/-- 

We,  the  undersiofned,  A.  B.  of  ,  the  author  of  a  certain  book, 

intituled  Y.  Z.  [or  the  personal  representative  of  the  author,  as  the  case  may 
be],  and  C.  D.  of  ,  do  hereby  certify,  that  wc  have  consented  and 

agreed  to  accept  the  benefits  of  the  act  passed  in  the  fifth  year  of  the  reign 
of  her  Majesty  Queen  Victoria,  cap.  ,  for  the  extension  of  the  term 

of  copyright  therein  provided  by  the  said  act,  and  hereby  declare  that  such 
extended  term  of  copyright   therein  is  the  property  of  the  said  A.  B.  m 

Dated  this  day  of  ,  18     . 

Witness  (Signed)         A.  B. 

C.  D. 
To  the  Registering  Ofl^icer  appointed  by  the  Stationers'  Company. 


No.  2. 

FORM    OF    REQUIRING    ENTRY    OF    PROPRIETORSHIP. 

I,  A.  B.,  of  ,  do  hereby  certify,  that  I  am  the  proprietor  of  thf 

copyright  of  a  book,  intituled  Y.  Z.,  and  I  hereby  require  you  to  make  en- 
try in  the  register  book  of  the  Stationers'  Company  of  my  proprietorship  of 
such  copyright,  according  to  the  particulars  underwritten. 


Title  of  Book. 

Name  of  Publisher 
and  Place  of 
Publication. 

Name  and  Place  of  | 
Abode  of  the  Pro-         Date  of  First 
prietor  of  ihc      1        Publication. 
Copyright.         1 

Y.  Z. 

A.  B            ' 

1 

Dated  this  day  of 

Witness,  CD. 


18 


(Signed) 


A.  B 


80 


APPENDIX. 


No.  3. 

ORIGINAL  ENTRY  OF  PROPRIETORSHIP  OF  COPYRIGHT  OF  A  BOOK- 


Time  of 

makin!^  the 

Entry. 

Title  of 
Book. 

Name  of  the 
Publisher,  and 
Place  of  Publica- 
tion. 

Name  and  PImcc 

of  Abode  of  the 

Proprietor  of  the 

Copyright. 

Date  of 
First   Pub- 
lication. 

Y.  Z. 

A.  B. 

C.   D. 

No.  4. 

FORM    OF    CONCURRENCE    OF    THE     PARTY     ASSIGNING     IN     ANY     BOOK 
PREVIOUSLY    REGISTERED. 

I,  A.  B.,  of  being  the  assigner  of  the  copyright  of  the  book 

hereunder  described,  do  hereby  require  you  to  make  entry  of  the  assignment 
of  the  copyright  therein. 


Title  of  Book. 

Assigner  of  the  Copyright. 

Assignee  of  Copyright. 

Y.   Z. 

A.  B. 

C.   D. 

Dated  this 


day  of 


,  18 


(Signed) 


A.  B. 


APPENDIX. 


81 


No.  5. 


FORM    OF    ENTRY    OF    ASSIGNMENT    OF   COPYRIGHT    IN    ANY    BOOK    VKK 
VIOUSLY    REGISTERED. 


Date  of  Entry. 

Title  of  Book. 

Assigner  of  the 
Copyright. 

Assignee  of 
Copyright. 

[Set  out  the  title 

of  the  book,  and 

refer  to  the  page 

of  the   registry 
book  in  which  the 

A.  B. 

C.  D. 

original      entry 
of  the  copyright 
thereof  is  made.'] 

82  APPENDIX. 


6  &  7  Wm.  IV.  c.  59.  —  An  Act  to  extend  the  Pro- 
tection of  Copyright  in  Prints  and  Engravings  in 
Ireland. 

6  &  7     "  Whereas  an  act  was  passed  in  the  seventeenth  year  of 
Will.  IV.  j]jg  reign  of  his  late  Majesty  King  George  the  third,  inti- 
^'  tilled  An  Act  for  more  effectually  securing  the  Property/ 

of  Prints  to  Inventors  and  Engravei's,  hy  enalling  them 
to  sue  for  and  recover  Penalties  in  certain   Cases  :    and 
whereas  it    is  desirable  to  extend  the  provisions  of  the 
said  act  to  Ireland;  be  it  therefore  enacted  by  the  King's 
most  excellent  Majesty,  by  and  with  the  advice  and  con- 
sent of  the  Lords  Spiritual  and  Temporal,  and  Commons, 
in  this  present  Parliament  assembled,  and  by  the  authority 
of  the  same,  that  from  and  after  the  passing  of  this  act  all 
Provisions    the  provisions  contained  in  the  said  recited  act  of  the 
of  recited    seventeenth  year  of  the  reign  of  his  late  Majesty  King 
ed  to  Ire-    George  the  third,  and  of  all  the  other  acts  therein  recited, 
shall  be  and  the  same  are  hereby  extended  to  the  united 
kingdom  of  Great  Britain  and  Ireland. 
Penalty  on       jj    ^^j  j^g  j^  further  enacted,  that  from  and  after  the 

engraving 

or  publish-  passing  of  this  act,  if  any  engraver,  etcher  printseller,  or 

prmr"with-  Other  person  shall,  within  the  time  limited  by  the  afore- 

out  consent  said  recited  acts,  engrave,   etch,  or  publish,  or  cause  to 

of  proprie-     ,  i  ,      ,  i  i-   i      i 

tor.  be  engraved,  etched,  or  published  any  engravmg  or  prmt 

of  any  description  whatever,  either  in  whole  or  in  part, 
which  may  have  been  or  which  shall  hereafter  be  pub- 
lished in  any  part  of  Great  Britain  or  Ireland,  without 
the  express  consent  of  the  proprietor  or  proprietors  thereof 
first  had  and  obtained  in  writing,  signed  by  him,  her,  or 
them  respectively,  with  his,  lier  or  their  own  hand  or 
hands,  in  the  presence  of  and  attested  by  two  or  more 
credible  witnesses,  then  every  such  proprietor  shall  and 
may,  by  and  in  a  separate  action  upon  the  case,  to  be 
brought  against  the  person  offending  in  any  Court  of 
Law  in  Great  Britain  or  Ireland,  recover  such  damages 
as  a  jury  on  the  trial  of  such  action  or  on  the  execution 
of  a  writ  of  inquiry  thereon  shall  give  or  assess,  together 
with  double  costs  of  suit. 


APPENDIX.  83 


0  &  7  Wm.  IV.  c.  110.  —  An  Act  to  repeal  so  much 
of  an  Act  of  the  Fifty-fourth  Year  of  King  George 
the  Third,  respecting  Copyrights,  as  requires  the 
delivery  of  a  copy  of  every  published  Book  to  the 
Library  of  Sion  College,  the  Four  Universities  of 
Scotland,  and  of  the  King's  Inns  in  Dublin. 

Whereas  by  an  act  passed  in  the  fifty-fourth  year  of  tlie    0  &.  7 
reign  of  his  late  Majesty  King  Georgethe  third,  intituled  *^  '"•  ^^■ 
An  Aet  to  amend  the  several  Acts  for  the  encouragement  ^^i-^^-^ 
of  Learning  ly  securing  the   Copies  and  CojJt/right  of  51  g.  III. 
printed  Books  to  the  Authors  of  such  Books  or  their  As-  ^-  ^^^■ 
sig7is,   it  is  amongst  other  things  enacted,  that  eleven 
copies  of  every  pubhshed  book  shall  be  gratuitously  de- 
Hvered  to  eleven  public   libraries  named  in  the  said  act ; 
and  whereas  the  provisions  of  the  said  act  have  in  certain 
respects  operated  to  the  injury  of  authors  and  publishers, 
and  have  in  some  cases  checked  or  prevented  the  publi- 
cation of  works  of  great  utility  and  importance,  and  it  is 
therefore  expedient  that  the  said  act  should  be  amended : 
be  it  therefore  enacted  by  the  King's  most  excellent  Ma- 
jesty, by  and  with  the  advice  and  consent  of  the  Lord's 
Spiritual   and  Temporal,  and  Commons,  in  this  present 
Parliament  assembled,  and  by  the  authority  of  the  same, 
that  so  much  of  the  said   recited  act   as  requires  that  a  So  mucL  of 

copy  of  every  book  which  shall  be  printed  and  published  rfcitffi  act 
'  ■'  ■'  .  .  ^'^  requires 

shall  be  delivered  in  manner   therein   mentioned  to  the  ilio delivery 

warehouse-keeper  of  the  Company  of  Stationers  for  the  i^ookr'ior'' 

use  of  the  library  of  Sion   College,  the  libraries  of  the  itiflibranes 

ii6r6in  m6n- 
four  universities  of  Scotland,  and  the  King'^s  Inns  Libra-  tioned  re- 

nj  at  Duhlin,  shall   be   and  the  same  is  hereby  repealed.  P'^'*'*^°- 

II.  And  be  it  further  enacted,  that  it  shall  be  lawful  Compcnsa- 

for  the  Lord  High  Treasurer  or  for  the  Commissioners  Jnudeiothe 

of  his  Maiesty's  Treasury,  or  any  three  or  more  of  them,  s-'^''^  hlra- 

.       ^        ■'  .  .  J  r      ^  1-      Ties   out  ot 

from   tune  to  time  to  issue   and   pay  out  of   the   consoli-  consolidat- 
dated  fund  of  the  united  kingdom  of  Great  Britain  and  edfund. 
Ireland,  to  the  person  or  persons  or  body  politic  or  corpo- 
rate, proprietors  or  managers  of  each  of  the  aforesaid  libra- 


84  APPENDIX. 

6  &.  7    ries,  such  an  annual  sum  as  may  be  equal  in  value  to  and 

Will.  IV.  a  compensation  for  the  loss  which  any  such  library  may 

c.  110.     sustain  by  reason  of  the  said  act  being  repealed,  so  far 

as  relates  to  such  library ;  such  annual  compensation  to 

be  ascertained  and  determined  according  to  the  value  of 

the  books  which  may  have  been  actually  received  by  each 

such  library,  in  such  manner  as  the  commissioners  of  his 

Majesty's  treasury  or  any  three  or   more  of  them  shall 

direct,  upon   an  average  of  the  three  years  ending  the 

thirtieth  day  of  June  one  thousand  eight  hundred  and 

thirty-six. 

Applicauon       jjj    j^^^  j      j^  further  enacted,  that  the  person  or  per- 

ot  the  com-  . 

pensation.  sons  or  body  politic  or  corporate,  proprietors  or  managers 
of  the  library  for  the  use  whereof  any  such  book  would 
have  been  delivered,  shall  and  they  are  hereby  required 
to  apply  the  annual  compensation  hereby  authorized  to 
be  made  in  the  purchase  of  books  of  literature,  science, 
and  the  arts,  for  the  use  of  and  to  be  kept  and  preserved 
in  such  library  ;  provided  always,  that  it  shall  not  be 
lawful  for  the  said  lord  high  treasurer  or  commissioners 
of  his  Majesty's  treasury  to  direct  the  issue  of  any  sum 
of  money  for  such  annual  compensation  until  sufficient 
proof  shall  have  been  adduced  before  him  or  them  of  the 
application  of  the  money  last  issued  to  the  purpose  afore- 
said. 


AMERICAN    STATUTES. 

I.  An  Act  for  the  encouragement  of  learning,  by  se- 
curing the  copies  of  maps,  charts,  and  books,  to 
the  authors  and  proprietors  of  such  copies,  during 
the  times  therein  mentioned. 

Section  1.  Be  it  enacted  by  the  Senate  and  House  of  Stat. 
Representatives  of  the  United  States  of  America  in  Con-  J^l^y*^** 
gress  assembled,  That  from  and  after  the  passing  of  this  v^r-v-^ 
act,  the  author  and  authors  of  any  map,  chart,  book  or  Repealed, 
books  already  printed  within  these  United  States,  being  ..q'^' ,3oJ^" 
a  citizen  or  citizens  thereof,  or  resident  within  the  same,  c.  36.    Act 

,  .  ,     .  1      •    •  ,  1       of  Feb.  15, 

his  or  their   executors,   administrators  or   assigns,   who  i^ig^  c.  19. 

hath  or  have  not  transferred  to  any  other  person  the  copy-  ^^^s,*^*!^'^^" 

right  of  such  map,  chart,  book  or  books,  share  or  shares  i6.  June 

thereof;    and  any  otlicr  person  or  persons,  being  a  citi-  ^  ',5^^    ' 

zen  or  citizens  of  these  United  States,  or  residents  there-  Authors 
....  1     •    •  1       of  maps, 

m,  his  or  their  executors,  adminrstrators  or  assigns,  who  charts  and 

hath  or  have  purchased  or  legally  acquired  the  copyright  ^"'j  ^^i 

of  any  such  map,  chart,  book  or  books,  in  order  to  print,  chasers 

reprint,  publish  or  vend  the  same,  shall  have  the  sole  right  loXave  the 

and  liberty  of  printing,  reprinting,  publishing  and  vending  Mi!crij;htof 

1  11^11        r        ,  o  ^  put.hcation, 

such  map,  chart,  book  or  books,  lor  the  term  of  fourteen  &c.  for  14 
years  from   the  recording  the  title  thereof  in  the  clerk's  y^'"'* ' 
office,  as  is  herein  after  directed  :    And  that  the  author  recordinsf 
and   authors  of  any  map,  chart,   book  or   books   already  ^(._ 
made  and  composed,  and  not  printed  or  published,  or  that 
shall  hereafter  be  made  and  composed,  being  a  citizen  or 
citizens  of  these   United  States,  or  resident  therein,  and 
his  or  their  executors,   administrators  or   assigns,  shall 
have   the  sole    right  and  liberty  of  printing,  reprinting, 
publishing  and  vending  such  map,  chart,  book  or  books, 
h 


86  APPENDIX. 

Stat.  for  the  like  term  of  fourteen  years  from  the  time  of  re- 
May  31,  cording  the  title  thereof  in  the  clerk's  cfRce  as  aforesaid. 

1 1  JO.  ^j^j  jf^  gj  ^]^g  expiration  of  the  said  term,  the  author  or 

Also  ifliv-  authors,  or  any  of  them,  be  living,  and  a  citizen  or  citi- 

ing  at  the  2ens  of  these  United  States,  or  resident  therein,  the  same 

end  of  that  .  .    ,        .     n  ■  •  j         i  •  ^  i  • 

term,  to  exclusive  right  shall  be  continued  to  him  or  them,  his  or 
{^\h  ^^^'  ^'^^'''  executors,  administrators  or  assigns,  for  the  further 
of  14 years;  term  of  fourteen  years:  Provided,  he  or  they  shall  cause 
the^Utlf  the  title  thereof  to  be  a  second  time  recorded  and  pub- 
^-  lished  in  the  same  manner  as  is  herein  after  directed,  and 

that  within  six  months  before  the  expiration  of  the  first 

term  of  fourteen  years  aforesaid. 
Other  per         ^*^^-  ^-  "^^^  ^^  *^  further  enacted.  That  if  any  other 
sons  print-    person  or  persons,  from  and  after  the  recording  the  title 
wUhout        of  any   map,  chart,  book  or   books,   and  publishing   the 

consent  of   gg^g  ^g  aforesaid,  and  within  the  times  limited  and  grant- 

the   author,  •  i     i 

how  to  be    ed  by  this  act,  shall  print,  reprint,  publish,  or  import,  or 

aga^nsfi  cause  to  be  printed,  reprinted,  published,  or  imported 
punished,  f^f^^  g^iy  foreign  kingdom  or  state,  any  coj)y  or  copies  of 
such  map,  chart,  book  or  books,  without  the  consent  of 
the  author  or  proprietor  thereof,  first  had  and  obtained  in 
writino-,  signed  in  the  presence  of  two  or  more  credible 
witnesses;  or  knowing  the  same  to  be  so  printed,  re- 
printed, or  imported,  shall  publish,  sell,  or  expose  to  sale, 
or  cause  to  be  published,  sold,  or  exposed  to  sale,  any 
copy  of  such  map,  chart,  book  or  books,  without  such 
consent  first  had  and  obtained  in  writing  as  aforesaid, 
then  such  offender  or  offenders  shall  forfeit  all  and  every 
copy  and  copies  of  such  map,  chart,  book  or  books,  and 
all  and  every  sheet  and  sheets,  being  part  of  the  same,  or 
either  of  them,  to  the  author  or  proprietor  of  such  map, 
chart,  book  or  books,  who  shall  forthwith  destroy  the 
same  :  And  every  such  offender  and  offenders  shall  also 
forfeit  and  pay  the  sum  of  fifty  cents  for  every  sheet 
which  shall  be  found  in  his  or  their  possession,  either 
printed  or  printing,  published,  imported  or  exposed  to  sale, 
contrary  to  the  true  intent  and  meaning  of  this  act,  the 
one  moiety  thereof  to  the  author  or  proprietor  of  such 
map,  chart,  book  or   books  who  shall  sue  for  the  same, 


APPENDIX. 

and  the  other  moiety  thereof  to  and  for  the  use  of  the      Stat. 
United  States,  to  be  recovered  by  action  of  debt  in  any    May  131, 
court  of  record   in  the  United  States,  \vl)erein  the  same      ^^-^^J' 
is   cognizable.     Provided  always,  That   such    action  be  1^02  c  36 
commenced  within  one  year   after  the  cause  of  action  sec. 3. 
shall  arise,  and  not  afterwards. 

Sec.  3.  And  be  it  further  enacted,   Tliat  no  person  Conditions 
shall  be  entitled  to  the  benefit  of  this  act,  in  cases  where  ""^,  ^lenef  t 
any  map,  chart,  book  or  books,  hath  or  have  been  already  of  ihis  act 
printed  and  published,  unless  he  shall  first  deposit,  and  in  lained. 
all  other  cases,  unless  he  shall  before  publication  deposit 
a  printed  copy  of  the  title  of  such   map,  chart,  book  or 
books,  in  the  clerk's  office  of  the  district  court  where  the 
author  or  proprietor  shall  reside  :    And  the  clerk  of  such 
court  is  hereby  directed  and  required  to  record  the  sarae 
forthwith,  in  a  book  to  be  kept  by  him  for  that  purpose, 
in  the  words  following,  (giving  a  copy  thereof  to  the  said 
author  or  proprietor,  under  the  seal  of  the  court,  if  he 
shall  require  the  same.)     "  District  of  to  wit : 

Be  it  remembered,  That  on  the  day  of 

in  the  year  of  the 

independence  of  the  United  States  of  America,  A.  B,  of 
the  said  district,  hath  deposited  in  this  office  the  title  of 
a  map,  chart,  book  or  books,  (as  the  case  may  be)  the 
right  whereof  he  claims  as  author  or  proprietor,  (as  the 
case  may  be)  in  the  words  following,  to  wit :  [here  insert 
the  title]  in  conformity  to  the  act  of  the  Congress  of  the 
United  States,  intituled  '  An  act  for  the  encouragement 
of  learning,  by  securing  the  copies  of  maps,  charts,  and 
books,  to  the  authors  and  proprietors  of  such  copies, 
during  the  times  therein  mentioned.'  C.  D.  clerk  of  the 
district  of  ."     For  which  the  said  clerk 

shall  be  entitled  to  receive  si.xty  cents  from  the  said  au- 
thor or  proprietor,  and  sixty  cents  for  every  copy  under 
seal  actually  given  to  such  author  or  proprietor  as  afore- 
said. And  such  author  or  proprietor  shall,  within  two  jg^o  c  36 
months  from  the  date  thereof,  cause  a  copy  of  the  said  see.  1.2. 
record  to  be  published  in  one  or  more  of  the  newspa- 
pers printed  in  the  United  States,  for  the  space  of  four 
weeks. 


88 


APPENDIX. 


Stat. 

May  31, 

1790. 

Authors  to 
deliver  a 
copy  of 
their  work 
to  the  Se- 
cretary of 
State. 

No  prohibi- 
tion against 
importing, 
reprinting, 
&c.  of  for- 
eign   writ- 
ings or  pub- 
lications. 
Penalty  for 
publishing 
manu- 
scripts 
without 
consent  of 
the  authors. 


Persons 
sued   for 
any  thing 
done  under 
this  act  may 
give  special 
matter  in 
evidence. 


Sec.  4.  And  be  it  further  enacted,  That  the  author  or 
proprietor  of  any  such  map,  chart,  book  or  books,  shall, 
within  six  months  after  the  publishing  thereof,  deliver,  or 
cause  to  be  delivered  to  the  Secretary  of  State  a  copy  of 
the  same,  to  be  preserved  in  his  office. 

Sec.  5.  And  be  it  further  enacted^  That  nothing  in  this 
act  shall  be  construed  to  extend  to  prohibit  the  importa- 
tion or  vending,  reprinting  or  publishing  within  the  Unit- 
ed States,  of  any  map,  chart,  book  or  books,  written, 
printed,  or  published  by  any  person  not  a  citizen  of  the 
United  States,  in  foreign  parts  or  places  without  the 
jurisdiction  of  the  United  States. 

Sec.  6.  And  be  it  further  enacted,  That  any  person  or 
persons  who  shall  print  or  publish  any  manuscript,  with- 
out the  consent  and  approbation  of  the  author  or  pro- 
prietor thereof,  first  had  and  obtained  as  aforesaid,  (if 
such  author  or  proprietor  be  a  citizen  of  or  resident  in 
these  United  States)  shall  be  liable  to  suffer  and  pay  to 
the  said  author  or  proprietor  all  damages  occasioned  by 
such  injury,  to  be  recovered  by  a  special  action  on  the 
case  founded  upon  this  act,  in  any  court  having  cogni- 
zance thereof. 

Sec.  7.  And  be  it  further  enacted.  That  if  any  person 
or  persons  shall  be  sued  or  prosecuted  for  any  matter,  act 
or  thing  done  under  or  by  virtue  of  this  act,  he  or  they 
may  plead  the  general  issue,  and  give  the  special  matter 
in  evidence. 

Approved,  May  31,  1790. 


APPENDIX.  89 


II.  An  Act  supplementary  to  an  act,  intituled  "  An 
act  for  the  encouragement  of  learning,  by  securing 
the  copies  of  maps,  charts,  and  books  to  the  au- 
thors and  proprietors  of  such  copies  during  the 
time  therein  mentioned,"  and  extending  the  bene- 
fits thereof  to  the  arts  of  designing,  engraving, 
and  etching  historical  and  other  prints. 

Be  it  enacted  hj  the  Senate  and  House  of  Representa-      Stat. 

fives  of  the  United  States  of  America  in  Congress  assem-  April  Q9, 

hkd^  That  every  person    who  shall,  from    and    after  the      1802. 

first  (lay  of  January  next,  claim  to  be  the  author  or  pro-  )lf~^^^7^, 
„  '  ,       ,  "^         [licpealed.J 

prietor  of  any  maps,  charts,   book   or   books,   and   shall  Additional 

thereafter  seek  to  obtain  a  copyright  of  the  same  agreea-  ^escrihed 

ble  to  the  rules  prescribed  by  law,  before  he  sliall  be  en-  for  persons 

titled  to  the  benefit  of  the  act,  entituled  "  An  act  for  the  be  authors 

encouragement  of  learning,   by  securing  the  copies  of  °^  F'>l'j:'e- 

maps,  charts,  and   books,  to  the  authors  and  proprietors  niaps, 

of  such   copies,  during  the  time  therein  mentioned,"  he  books.'  ""^ 

shall,  in  addition  to  the  requisites  enjoined  in  the  third  i^so.  c.  15. 

and  fourth  sections  of  said  act,  if  a  book  or  books,  give 

information  by  causing   the   copy  of  the  record,  which, 

by  said  act  he  is  re(iuired  to  publish  in  one  or  more  of  the 

newspapers,  to  be  inserted  at  full  length  in  the  title-page 

or  in  the  page   immediately  following  the  title  of  every 

such  book  or  books ;    and  if  a  map  or  chart,  shall  cause 

the  following  words  to  be  impressed  on  the  face  thereof, 

viz  :   "  Entered  according  to  act  of  Congress,  the 

day  of  18  [here  insert  the  date  when 

the  same  was  deposited  in  the  office]  hi/  A.  B.  of  the  state 

of  [here   insert  the  author's  or  proprietor's  name 

and  the  state  in  which  he  resides.] 

Sec.  2.  And  be  it  further  enacted,  That  from  and  after  Same  rules 

the  first  day  of  January  next,  every  person  being  a  citi-  whh^^e- 

zen  of  the   United   States,  or  resident   within   the  same.  "P'^'^^'  '" 

u         1     11     •  1    >      ■  persons 

wtio  shall   invent  and  design,  engrave,  etch  or  work,  or  who  shall 

invent,  and 
design,  engrave,  etch,  or  work  historical  or  other  prinu 

h* 


90  APPENDIX. 

Stat.       from  his  own  works  and  inventions,  shall  cause  to  be  de- 
April  29,  signed  and  engraved,  etched  or  worked,  any  historical  or 
^  other  print  or  prints,  shall  have  the  sole  right  and  lib- 

erty of  printing,  re-printing,  publishing  and  vending 
such  print  or  prints,  for  the  term  of  fourteen  years  from 
the  recording  the  title  thereof  in  the  clerk's  office,  as  pre- 
scribed by  law  for  maps,  charts,  book  or  books  :  Pro- 
vided, he  shall  perform  all  the  requisites  in  relation  to 
such  print  or  prints,  as  are  directed  in  relation  to  maps, 
charts,  book  or  books,  in  the  third  and  fourth  sections  of 
the  act  to  which  this  is  a  supplement,  and  shall  moreover 
cause  the  same  entry  to  be  duly  engraved  on  such  plate, 
with  the  name  of  the  proprietor,  and  printed  on  every 
such  print  or  prints  as  is  herein  before  required  to  be 
Penalties      rnade  on  maps  or  charts. 

fngf°ftX  Sec.  3.  And  be  it  further  enacted,  That  if  any  printsell- 
ing  or         Qj.  Qf  other  person  whatsoever,  from  and  after  the  said  first 

working,  or  '^  .,.,        ■         i--ili,- 

copyingand  day  of  January  next,  withm  the  time  limited  by  this  act, 

selling  a       j    jj  gn^j-ave,  etch  or  work,  as  aforesaid,  or  in  any  other 

print   or  s>  '  '  j  i     j 

prints,  manner  copy  or  sell,  or  cause  to  be  engraved,  etched, 

Consent  ^of  copied  or  sold,  in  the  whole  or  in   part,  by  varying,  ad- 

the  owner  ^[^„  ^q  or  diminishing  from  the  main  design,  or  shall 
or  owners,  °  .  .  ^  ,  ^i-.j 

in  writing,  print,  re-print,  or  import  for  sale,  or  cause  to  be  printed, 
C  c'^R  reprinted,  or  imported  for  sale,  any  such  print  or  prints, 
48.  or   any  parts  thereof,  without  the  consent  of  the  proprie- 

tor or  proprietors  thereof,  first  had  and  obtained,  in  writ- 
ing, signed  by  him  or  them  respectively,  in  the  presence 
of  two  or  more  eredible  witnesses  ;  or  knowing  the  same 
to  be  so  printed  or  re-printed,  without  the  consent  of  tne 
proprietor  or  proprietors,  shall  publish,  sell,  or  expose  to 
sale  or  otherwise,  or  in  any  other  manner  dispose  of  any 
such  print  or  prints,  without  such  consent  first  had  and 
obtained,  as  aforesaid,  then  such  offender  or  offenders 
shall  forfeit  the  plate  or  plates  on  which  such  print  or 
prints  are  or  shall  be  copied,  and  all  and  every  sheet  or 
sheets  (being  part  of  or  whereon  such  print  or  prints  are 
or  shall  be  copied  or  printed)  to  the  proprietor  or  pro- 
prietors of  such  original  print  or  prints,  who  shall  forth- 
with destroy  the   same;    and   further,  that   every   such 


APPENDIX.  91 

offender  or  offenders  shall  forfeit  one  dollar  for  every  print      Stat, 
wiiich  shall   be  found  in  his,  her,  or  their  custody  ;  either  April  29, 
printed,  published,  or  exposed  to  sale,  or  otherwise  dis-      I''"*'- 
posed  of,  contrary  to  the  true  intent  and  meaning  of  this  a  moiety  of 
act,  the   one   moiety  thereof  to  any  person  who  shall  sue  ''"^  forfeit- 
for  the  same,  and  the  other  moiety  thereof  to  and  for  the  one  who 
use  of  the  United  States,  to  be  recovered  in  any  court  f^'j  thg"^ 
having  competent  jurisdiction  thereof  same. 

Sec.  4.  And  be  it  further  enacted.  That  if  any  person  ^,r"pui||ish- 
or  persons  from   and  after  the  passing  of  this  act,  shall  ing  maps, 
print  or  publish  any  map,  chart,  book  or   books,  print  or  [,„ok|'or 
prints,  who  have  not  legally  acquired  the  copyright  of  prims,  but 
such  map,  chart,  book  or  books,  print  or  prints,  and  shall,  prescribed 
contrary  to  the  true  intent  and  meaning  of  this  act,  insert  ^y  '^^• 
therein  or   impress  thereon  that  the  same  has  been  en- 
tered according  to  act  of  Congress,  or  words  purporting 
the  same,  or  purporting   that  the  copyright   thereof  has 
been   acquired  ;  every   person    so   offending   shall  forfeit 
and  pay  the  sum  of  one  hundred  dollars,   one    moiety 
thereof  to  the  person  who  shall  sue  for  the  same,  and  the 
other   moiety  thereof  to   and  for  the  use  of  the  United 
States,  to  be  recovered  by  action  of  debt  in  any  court  of 
record  in  the  United  States,  having  cognizance  thereof  Limitation 
Provided  always,  that  in  every  case  for  forfeitures  herein  o' action  in 
before  given,  the  action  be  commenced  within  two  years  feiture. 
from  the  time  the  cause  of  action  may  have  arisen. 

Approved,  April  29,  1802. 


92  APPENDIX. 


III.  An  Act  to  extend  the  jurisdiction  of  the  circuit 
courts  of  the  United  States  to  cases  arising  under 
the  law  relating  to  patents. 

Stat.  Be  it  enacted  by  the  Senate  and  House  of  Rcpresenta- 

Feb,  15,  lives  of  the  United  Slates  of  America,  in  Congress  assem- 
^1£;  bled,  That  the  circuit  courts  of  the  United  States  shall 
have  original  cognizance,  as  well  in  equity  as  at  law,  of 
all  actions,  suits,  controversies,  and  cases  arising  under 
any  law  of  the  United  States,  granting  or  confirming  to 
authors  or  inventors  the  exclusive  right  to  their  respect- 
ive writings,  inventions,  and  discoveries  :  and  upon  any 
bill  in  equity,  filed  by  any  party  aggrieved  in  any  such 
cases,  shall  have  authority  to  grant  injunctions,  according 
to  the  course  and  principles  of  courts  of  equity,  to  pre- 
vent the  violation  of  the  rights  of  any  authors  or  invent- 
ActofFeb.  ors,  secured  to  them  by  any  laws  of  the  United  States, 
21,  1793,  c.  ^^  ^^^j^  terms  and  conditions  as  the  said  courts  may 
Act  of  May  deem  fit  and  reasonable  :   Provided,  however.  That  from 

31     1790 

c. 'i5.  '  all  judgments  and  decrees  of  any  circuit  courts,  rendered 
Proviso.  jj^  ^]^g  premises,  a  writ  of  error  or  appeal,  as  the  case  may 
require,  shall  lie  to  the  Supreme  Court  of  the  United 
States,  in  the  same  manner,  and  under  the  same  circum- 
stances, as  is  now  provided  by  law  in  other  judgments 
and  decrees  of  such  circuit  courts. 
Approved,  February  15,  1819. 


ATPENDIX.  93 


An  Act  to  amend  the  several  acts  respecting  copy- 
rights. 

Be  it  enacted  by  the  Senate  and  House  of  Representa-      Stat. 
lives  of  the  United  Stales  of  America,  in  Congress  ossein-    Feb.  3, 
bled.  That  from   and   after  the   passing  of  this   act,  any      l^-'^l- 
person  or  persons,  being   a  citizen  or  citizens  of  the  Authors  of 
United  States,  or  resident  therein,  who  shall  be  the  au-  l^ooks  &c. 
tnor  or  autriors  ot  any  book  or  books,  map,  chart,  or  mu-  execuiors, 
sical  composition,  which  may  be  now  made  or  composed,  s^*Je^°ii'|Jt^^ 
and  not  printed  and  published,  or  shall  hereafter  be  made  for  twemy- 
or  composed,  or  who  shall  invent,  design,  etch,  engrave,  ^'^    5 ears, 
work,  or  cause  to  be  engraved,  etched,  or  worked  from 
his  own   design,  any  print  or  engraving,  and  the  execu- 
tors, administrators,  or  legal   assigns  of  such  person  or 
persons,  shall  have  the  sole  right  and  liberty  of  printing, 
reprinting,  publishing,  and  vending  such  book  or  books, 
map,  chart,  musical   composition,  print,  cut,  or  engrav- 
ing, in  whole  or  in  part,   for  the  term  of  twenty-eight 
years  from  the  time  of  recording  the  title  thereof,  in  the 
manner  hereinafter  directed. 

Sec.  2.  And  be  it  further  enacted,  That  if,  at  the  expira-  Renewal  of 
tion  of  the  aforesaid  term  of  years,  such  author,  inventor,  F'^'l^'g^  ^or 
designer,  engraver,  or  any  of  them,  where  the  work  had  years, 
been  originally  composed   and  made  by  more  than  one 
person,  be  still   living,  and    a   citizen  or  citizens  of  the 
United  States,  or  resident  therein,  or  being  dead,  shall 
have  left  a  widow,  or  child,  or  children,  either  or  all  then 
living,  the  same  exclusive  right  shall  be  continued  to  such 
author,  designer,  or   engraver,  or,  if  dead,  then  to  such 
widow  and  child,  or   children,  for   the  further  term  of 
fourteen  years :    Provided,  That  the  title  of  the  work  so  Conditions, 
secured  shall  be  a  second   time  recorded,  and  all   such 
other  regulations  as  are  herein  required  in  regard  to  ori- 
ginal copyrights,  be  complied  with  in  respect  to  such  re- 
newed copyright,  and  that  within  six  months  before  the 
expiration  of  the  first  term. 


94  APPENDIX. 

Stat.  Sec.  3.  And  be  it  further  enacted,  That  in  all  cases  of 

Feb.  3,  renewal  of  copyright  under  this  act,  such  author  or  pro- 

^^'^^-  prietor   shall,  within   two   months    from  the  date  of  said 

Publication  renewal,  cause  a   copy  of  the  record  thereof  to  be  pub- 

of  renewal.  Jished  in  one  or  more  of  the  newspapers  printed  in  the 

United  States,  for  the  space  of  four  weeks. 

Copy  of  Sec.  4.  And  be  it  further  enacted,  That   no  person 

title  to  be  gj^j^ii  i^g  entitled  to  the  benefit  of  this  act,  unless  he  shall, 

deposited.  .  .  r    i        •  i        r 

before  publication,  deposit  a  pruited  copy  ot  the  title  ot 

such  book,  or   books,  map,  chart,  musical   composition, 
print,  cut,  or  engraving,  in  the  clerk's  office  of  the  dis- 
trict court  of  the  district  wherein  the  author  or  proprie- 
tor shall   reside,  and  the   clerk  of  such  court  is  hereby 
To  be  re-    directed  and  required  to  record  the  same   thereof  forth- 
corded,        ^ith,  in  a  book  to  be  kept  for  that  purpose,  in  the  words 
following  (giving  a   copy  of  the  title,  under  the  seal  of 
the  court,  to  the  said  author  or  proprietor,  whenever  he 
Form  of  re-  shall  require  the  same:)  "  District  of  to  wit:    Be 

^°^^-  it  remembered,  that  on  the  day  of  anno  domini, 

A.  B.,  of  the  said  district,  halh  deposited  in  this 
office  the  title  of  a  book,  (map,  chart,  or  otherwise,  as 
the  case  may  be,)  the  title  of  which  is  in  the  words  fol- 
lowing, to  wit :  (here  insert  the  title  ;)  the  right  whereof 
he  claims  as  author  (or  proprietor  as  the  case  may  be  ;)  in 
conformity  with  an  act  of  Congress,  entitled  '  An  act  to 
amend  the  several  acts  respecting  copyrights,'  C.  D.  clerk 
Fee.  of  the  district."     For  which  record,  the  clerk  shall  be 

entitled  to  receive,  from  the  person  claiming  such  right 
as  aforesaid,  fifty  cents;  and  the  like  sum  for  every  copy, 
under  seal,  actually  given  to  such  person  or  his  assigns. 
Copy  of      And  the  author  or  proprietor  of  any  such  book,  map,  chart, 
de°posited^'^  musical  composition,  print,  cut,  or  engraving,  shall,  within 
three   months   from   the  publication  of  said   book,  map, 
chart,  musical   composition,  print,  cut,  or  engraving,  de- 
r        liver  or  cause  to  be  delivered  a  copy  of  the  same  to  the 
works  and    clerk  of  said   district.     And  it  shall  be  the  duty  of  the 
trTnsmitied  clerk  of  each  district  court,  at  least  once  in  every  year, 
to  the  Se-  ^^  transmit  a  certified  list  of  all  such  records  of  copy- 
S?a\e7  °     right,  including  the  titles  so  recorded,  and  the  dates  of 


APPENDIX.  95 

record,  and  also  all  the  several   copies  of  books  or  other  Stat, 

works  deposited  in  his  office  according  to  this  act,  to  the  I'^fh.  3, 

Secretary  of  State,  to  be  preserved  in  his  office.  ln.il. 

Sec.  5.  And  be  it  further  enacted,  That  no   person  ^•olice  of 

shall  be  entitled  to  the  benefit  of  this  act,  unless  he  shall  copyright 

■      r  r  •     1         I      •  .  to  l)C  prillt- 

give  mtorination  of  copyright  being  secured,  by  causing  cd,  &c. 
to  be  inserted  in  the  several  copies  of  each  and  every 
edition  published  during  the  term  secured  on  the  title- 
page,  or  the  page  immediately  following,  if  it  be  a  book, 
or,  if  a  map,  cliart,  musical  composition,  print,  cut,  or 
engraving,  by  causing  to  be  impressed  on  the  face  thereof, 
or  if  a  volume  of  maps,  charts,  music,  or  engravings,  up- 
on the  title  or  frontispiece  thereof,  the  following  words, 
viz  :  "  Entered  according  to  act  of  Congress,  in  the  year 
,  by  A.  B.,  in  the  clerk's  office  of  the  district  court 
of  ,"  (as  the  case  may  be.) 

Sec.  6.  And  be  it  further  enacted,  That  if  any  other  Infringe- 
person  or  persons,  from  and  after  the  recording  the  title  copyri''h» 
of  any  book  or  books,  according  to  this  act,  shall,  within  lo  Ijool^s. 
the  term  or  terms  herein  limited,  print,  publish,  or  im- 
port, or  cause  to  be  printed,  published,  or  imported,  any 
copy  of  such  book,  or  books,  without  the  consent  of  the 
person  legally  entitled  to  the  copyright  thereof,  first  had 
and  obtained  in  writing,  signed  in  presence  of  two  or 
more  credible  witnesses,  or  shall,  knowing  the  same  to 
be  so  printed  or  imported,  publish,  sell,  or  expose  to  sale, 
or  cause  to  be  published,  sold,  or  exposed  to  sale,  any 
copy  of  such  book  without  such  consent  in  writing;  then  Penalty, 
such  ofiender  shall  forfeit  every  copy  of  such  book  to  the 
person  legally,  at  the  time,  entitled  to  the  copyright 
thereof;  and  shall  also  forfeit  and  pay  fifty  cents  for  every 
such  sheet  which  may  be  found  in  his  possession,  either 
printed,  or  printing,  published,  imported,  or  exposed  to 
sale,  contrary  to  the  intent  of  this  act,  the  one  moiety 
thereof  to  such  legal  owner  of  the  copyright  as  aforesaid, 
and  tl:e  other  to  the  use  of  the  United  States,  to  be  re- 
covered by  action  of  debt  in  any  court  having  competent 
jurisdiction  thereof. 

Sec.  7.  And  be  it  further  enacted.  That,  if  any  person 


96 


APPENDIX. 


Stat. 

Feb.  3, 

1831. 

Infringe- 
ment of 
copyright, 
to  prints, 
maps,  &c. 


Penalty. 


Privilege 
restricted  to 
citizens  or 
residents. 


or  persons,  after  the  recording  the  title  of  any  print,  cut, 
or  engraving,  map,  chart,  or  musical  composition,  ac- 
cording to  the  provisions  of  this  act,  shall,  vvitliin  the 
term  or  terms  limited  by  this  act,  engrave,  etch,  or  work, 
sell,  or  copy,  or  cause  to  be  engraved,  etched,  worked,  or 
sold,  or  copied,  either  on  the  whole,  or  by  varying,  add- 
ing to,  or  diminishing  the  main  design  with  intent  to 
evade  the  law;  or  shall  print  or  import  for  sale,  or  cause 
to  be  printed,  or  imported  for  sale,  any  such  map,  chart, 
musical  composition,  print,  cut  or  engraving,  or  any  parts 
thereof,  without  the  consent  of  the  proprietor  or  proprie- 
tors of  the  copyright  thereof,  first  obtained  in  writing, 
signed  in  the  presence  of  two  credible  witnesses  ;  or, 
knowing  the  same  to  be  so  printed  or  imported  without 
such  consent,  shall  publish,  sell,  or  expose  to  sale,  or  in 
any  manner  dispose  of  any  such  map,  chart,  musical 
composition,  engraving,  cut,  or  print,  without  such  con- 
sent, as  aforesaid  ;  then  such  offender  or  offenders  shall 
forfeit  the  plate  or  plates  on  which  such  map,  chart,  mu- 
sical composition,  engraving,  cut,  or  print,  shall  be  cop- 
ied, and  also  all  and  every  sheet  thereof  so  copied  or 
printed  as  aforesaid,  to  the  proprietor  or  proprietors  of 
the  copyright  thereof;  and  shall  further  forfeit  one  dol- 
lar for  every  sheet  of  such  map,  chart,  musical  composi- 
tion, print,  cut,  or  engraving,  which  may  be  found  in  his 
or  their  possession,  printed  or  published,  or  exposed  to 
sale,  contrary  to  the  true  intent  and  meaning  of  this  act; 
the  one  moiety  thereof  to  the  proprietor  or  proprietors, 
and  the  other  moiety  to  the  use  of  the  United  States,  to 
be  recovered  in  any  court  having  competent  jurisdiction 
thereof. 

Sec.  8.  And  be  it  further  enacted.  That  nothing  in 
this  act  shall  be  construed  to  extend  to  prohibit  the  im- 
portation or  vending,  printing,  or  publishing,  of  any  map, 
chart,  book,  musical  composition,  print  or  engraving, 
written,  composed,  or  made,  by  any  person  not  being  a 
citizen  of  the  United  States,  nor  resident  within  the 
jurisdiction  thereof. 

Sec.  9.  And  be  it  further  enacted.  That  any  person  or 


APPENDIX.  97 

persons  who  slinll  print  or  publish  any  manuscript  what-   Stat.  II. 
ever  without  the  consent  of  the  author  or  legal  proprietor     ^ ^^^-  3, 
first  obt;iine(I   as   aforesaid,  (if  sucli  author  or  proprietor      '^'»1- 
bfi  a  citizen  of  the  United   States,  or  resident  therein,)  puMicaiiou 
shall  be  liable  to  suffer  and  pay  to  the  author  or  proprie-  »'  '"^'nu- 

*  II     1  11  1      •    •  ,  scripts 

tor,  all   damages   occasioned   by  such   injury,  to   be  re-  wniioui 

covered  by  a  special  action  on  the  case  founded  upon  this  ^"^''"'' 

act,  in   any   court   having  cognizance  thereof;  and  the  Ucmedy. 

several  courts  of  the  United  States  empowered  to  grant 

injunctions  to  prevent  the  violation  of  the   rights  of  au-  injunction 

thors    and   inventors,    are    hereby   empowered    to    grant  *"  prevent. 

injunctions,  in  like   manner,  according  to  the  principles 

of  equity,  to  restrain  such  publication  of  any  manuscript 

as  aforesaid. 

Sec.  10.  And  he  it  further  enacted,  That,  if  any  per-  General 
son  or  persons  shall  be  sued  or  prosecuted,  for  any  mat-  'ssue,  &c. 
ter,  act,  or  thing  done  under  or  by  virtue  of  this  act,  he 
or  they  may  plead  the  general  issue  and  give  the  special 
matter  in  evidence. 

Sec.  11.  And  be  it  further  enacted,  That,  if  any  per-  False  entry 
son  or  persons,  from   and   after  the  passing  of  this  act,  "-^ .  "^"l'^" 
shall  print  or  publish  any  book,  map,  chart,  musical  com-    " 
position,  print,  cut,  or  engraving,  not  having  legally  ac- 
quired the  copyright  thereof,  and  shall  insert  or  impress 
that  the  same  hath  been  entered  according  to  act  of  Con- 
gress, or   words  purporting  the   same,   every    person   so 
offending  shall  forfeit  and  pay  one  hundred  dollars  :    one  Penalty, 
moiety  thereof  to  the  person  who  shall  sue  for  the  same, 
and  the  other  to  the  use  of  the  United  States,  to  be  re- 
covered by  action  of  debt,  in  any  court  of  record  having 
cognizance  thereof. 

Sec.  12.  And  he  it  further  enacted,  That,  in  all  re-  q^^^^ 
coveries  under  this  act,  either  for  damages,  forfeitures,  or 
penalties,  full  costs  shall  be  allowed  thereon,  any  thing  in 
any  former  act  to  the  contrary  notwithstanding. 

Sec.  13.  And  be  it  further  enacted.  That  no  action  or  Limitation 
prosecution  shall  be  maintained,  in  any  case  of  forfeiture  "faction. 
or  penalty  under  this  act,  unless  the  same  shall  have  been 
i 


98  APPENDIX. 

Stat.  II.    commenced  within  two  years  after  the   cause  of  action 
Feb.  3,    shall  have  arisen. 

1831.  Sec.  14.  And  be  it  further  enacted^  That  the  "  Act  for 

J,  ,  J.  the  encouragement  of  learning,  by  securing  the  copies  of 
act  of  Maj'  maps,  charts,  and  books,  to  the  authors  and  proprietors 
c. 'i5.     '     of  such    copies   during  the   times   therein    mentioned," 

passed  May  thirty-first,  one  thousand  seven  hundred  and 
Act  of  April  ninety,  and  the  act  supplementary  thereto,  passed  April 
c.  36.     '     twenty-ninth,  one  thousand  eight  hundred  and  two,  shall 

be,  and  the  same  are  hereby,  repealed  :    saving,  always, 

such  rights  as  may  have  been  obtained  in  conformity  to 

their  provisions. 
Provisions        gj-p,  15,  ji^^i  jg  ii  further  enacted.  That  all  and  sev- 

of  tills  act  ... 

for  security  eral  the  provisions  of  this  act,  intended  for  the  protection 
riffhts^^&c  '^"'^  security  of  copyrights,  and  providing  remedies,  pen- 
to  extend  to  allies,  and  forfeitures,  in   case  of  violation  thereof,  shall 

cxistin" 

copyrights,   be  held  and   construed  to  extend  to  the  benefit  of  the 
legal  proprietor  or  proprietors  of  each  and  every  copy- 
right heretofore  obtained,  according  to  law,  during  the 
term  thereof,  in  the  same  manner  as  if  such  copyright 
had  been  entered  and  secured  according  to  the  directions 
of  this  act. 
Extension         Sec.  16.  And  he  it  further  enacted.  That,  whenever  a 
copyrights,   Copyright  has  been  heretofore  obtained  by  an  author  or 
authors,  inventor,  designer,  or  engraver,  of  any  book, 
map,  chart,  print,  cut,  or  engraving,  or  by  a  proprietor  of 
the  same  :   if  such  author  or  authors,  or  either  of  them, 
such  inventor,  designer,   or  engraver,  be  living  at  the 
passage  of  this  act,  then  such  author  or  authors,  or  the 
survivor  of  them,  such   inventor,  engraver,  or  designer, 
shall  continue  to  have  the  same   exclusive  right  to  his 
book,  chart,  map,  print,  cut,  or  engraving,  with  the  bene- 
fit of  each  and  all  the  provisions  of  this  act,  for  the  secu- 
rity thereof,  for  such   additional   period  of  time  as  will, 
together  with  the  time  which  shall  have  elapsed  from  the 
first  entry  of  such  copyright,  make  up  the  term  of  twenty- 
eight  years,  with  the  same  right  to  his  widow,  child,  or 
children,  to  renew  the  copyright,  at  the  expiration  thereof, 
as  is  above  provided  in  relation  to  copyrights   originally 


APPENDIX.  99 

secured  under  this  act.     And  if  such   author  or  authors,    gj^  jj 
inventor,  designer,  or  engraver,  shall   not  be  living  at     Feb.  3, 
the  passage  of  this  act,  then,  his  or  their  heirs,  execu-      1831. 
tors   and    administrators,  shall    be   entitled  to  the  like  '-^'"^^'"^-' 
exclusive  enjoyment  of  said   copyriglit,  with  the  benefit 
of  each  and  all  the  pro\isions  of  tiiis  act  for  the  security 
thereof,  for  the  period  of  twenty-eight  years  from  the  first 
entry  of  said   copyright,  with  the  like  privilege  of  re- 
newal to  the  widow,  child,  or  children,  of  author  or  au- 
thors, designer,  inventor,  or  engraver,  as  is  provided  in 
relation  to  copyrights  originally  secured  under  this  act: 
Provided,  That  tliis  act  shall  not  extend  to  any  copy-  Proviso, 
right  heretofore  secured,  the  term  of  which  has  already 
expired. 

Approved,  February  3,  1831. 


100  APPENDIX. 


An  Act  supplementary  to  the  act  to  amend  the  sev- 
eral acts  respecting  copyrights. 

Stat.  1.        ^^  *^  enacted  by  the  Senate  and  House  of  Representa- 
June  30,  fives  of  the  United  States  of  America  in  Congress  assem- 
1834.      bled,  That  all   deeds  or  instruments  in  writing  for  the 
J,  P     t  ansfer  or  assignment  of  copyrights,  being  proved  or  ac- 

transfer  to  knovvledged  in  such  manner  as  deeds  for  the  conveyance 
bejecor  e  ,  ^^  j^^^^  ^^^  required  by  law  to  be  proved  or  acknow- 
ledged in  the  same  state  or  district,  shall  and  may  be  re- 
corded in  the  office  where  the  original  copyright  is  de- 
posited and  recorded  ;  and  every  such  deed  or  instru- 
ment that  shall  in  any  time  hereafter  be  made  and  exe- 
cuted, and  which  shall  not  be  proved  or  acknowledged 
and  recorded  as  aforesaid,  within  sixty  days  after  its  exe- 
cution, shall  be  judged  fraudulent  and  void  against  any 
subsequent  purchaser  or  mortgagee  for  valuable  consid- 
eration without  notice. 
Fees  of  Sec  2.  And  le  it  further  enacted,  That  the  clerk  of 

trici  court."  the  district  court  shall  be  entitled  to  such  fees  for  per- 
forming the  services  herein  authorized  and  required,  as 
he  is  entitled  to  for  performing  like  services  under  exist- 
ing laws  of  the  United  States. 
Approved,  June  30,  1834. 


APPENDIX.  101 


An  Act  in  addition  to  an  act  to  promote  the  progress 
of  the  useful  arts,  and  to  repeal  all  acts  and  parts 
of  acts  heretofore  made  for  that  purpose. 

Sec.  3.  Be  it  further  enacted.  That  any  citizen  or  cit-   Stat.  II. 
izens,  or  alieii  or   aliens,  liaving  resided   one  year  in  the  Aug.  29, 
United  States  and  taken  the  oath  of  his  or  their  intention      1842. 
to  become  a  citizen  or  citizens,  who  by  his,  her,  or  their  ,, . 

'  J         ■>         1  Citizens, 

own  industry,  genius,  efforts,  and  expense,  may  have  in-  &c.  may 
vented  or  produced  any  new  and  original  design  for  a  t'eiu'how.^ 
manufacture,  whether  of  metal  or  other  material  or  mate- 
rials, or  any  new  and  original  design  for  the  printing  of 
woollen,  silk,  cotton,  or  other  fabrics,  or  any  new  and 
original  design  for  a  bust,  statue,  or  has  relief  or  compo- 
sition in  alto  or  basso  relievo,  or  any  new  and  original 
impression  or  ornament,  or  to  be  placed  on  any  article  of 
manufacture,  the  same  being  formed  in  marble  or  other 
material,  or  any  new  and  useful  pattern,  or  print,  or  pic- 
ture, to  be  either  worked  into  or  worked  on,  or  printed 
or  painted  or  cast  or  otherwise  fixed  on,  any  article  of 
manufacture,  or  any  new  and  original  shape  or  configu- 
ration of  any  article  of  manufacture  not  known  or  used 
by  others,  before  his,  her  or  their  invention  or  production 
thereof,  and  prior  to  the  time  of  his,  her,  or  their  appli- 
cation for  a  patent  therefor,  and  who  shall  desire  to 
obtain  an  exclusive  property  or  right  therein  to  make,  and 
use,  and  sell  and  vend  the  same,  or  copies  of  the  same, 
to  others,  by  them  to  be  made,  used,  and  sold,  may  make 
application  in  writing  to  the  commissioner  of  patents,  ex- 
pressing such  desire,  and  the  commissioner,  on  due  pro- 
ceedinrrs  had,  may  grant  a  patent  therefor,  as  in  the  case 
now  of  application  for  a  patent.  Provided,  That  the  fee  Proviso, 
in  such  cases  which  by  the  now  existing  laws  would  be 
required  of  the  particular  applicant  shall  be  one  half  the 
sum,  and  that  the  duration  of  said  patent  shall  be  seven 
years,  and  that  all  the  regulations  and  provisions  which 
k 


102  APPENDIX. 

Stat.  II.  now  apply  to  the  obtaining  or  protection  of  patents  not 
Aug.  29,  inconsistent  with  the  provisions  of  this  act,  shall  apply  to 
^  applications  under  this  section. 

Sec.  4.  And  he  it  furlhei-  enacted,  That  the  oath  re- 
quired for  applicants  for  patents  may  be  taken,  when  the 
applicant  is  not,  for  the  time  being,  residing  in  the 
United  States,  before  any  minister,  plenipotentiary^ 
charge  d'affaires,  consul,  or  commercial  agent  holding 
commission  under  the  government  of  the  United  States, 
or  before  any  notary  public  of  the  foreign  country  in 
which  such  applicant  may  be. 
Penalty  for       Sec.  5.  And  he  it  further  enacted.  That  if  any  person 

infringing  persons  shall   paint  or  print,  or   mould,  cast,  carve,  or 

Iherighlsot         l  ^  ,  .  i  j  u    u 

a  patentee,    entrrave,  or  stamp,  upon  anythmg  made,  used,  or  sold,  by 

Sarkuig.      ^im,  for  the  sole  making  or  selling  which  he  hath  not  or 

shall  not  have  obtained  letters  patent,  the  name  or  any 

imitation  of  the   name  of  any  other  person  who  hath  or 

shall  have  obtained  letters  patent  for  the  sole  making  and 

vending  of  such  thing,  without  consent  of  such  patentee, 

or  his  assigns  or  legal  representatives ;  or  if  any  person, 

upon  any  such  thing  not  having  been  purchased,  from  the 

patentee,  or  some  person  who  purchased  it  from  or  under 

such  patentee,  or  not  having  the  license  or  consent  of 

such  patentee,  or  his   assigns  or  legal    representatives, 

shall  write,  paint,   print,   mould,   cast,  carve,   engrave, 

stamp,  or  otherwise  make  or  affix  the  word  "patent,"  or 

the  words  "  letters  patent,"  or  the  word  "  patentee,"  or 

any  word   or  words  of  like  kind,  meaning,   or  import, 

with  the  view  or  intent  of  imitating  or  counterfeiting  the 

stamp,  mark,  or  other  device  of  the  patentee,  or  shall  affix 

the  same  or  any  word,  stamp,  or  device,  of  like  import, 

on  any  unpatented  article,  for  the  purpose  of  deceiving 

the  public,  he,  she,  or  they,  so  offending,  shall   be  liable 

for  such  offence,  to  a  penalty  of  not  less  than  one  hun- 

How  recov-  dred  dollars,  with  costs,  to  be  recovered  by  action  in  any 

erable,  &c.    of  the  circuit  courts  of  the  United  States,  or  in  any  of  the 

district  courts  of  the  United  States,  having  the  powers 

and  jurisdiction  of  a  circuit  court;  one  half  of  which 


APPENDIX.  103 

penalty,  as  recovered,  shall  be  paid  to  the  patent  fund,  Stat.  II. 
and  the  other  half  to  any  person  or  persons  who  shall  sue  Aug.  29, 
for  the  same.  «,.J^5^^ 

Sec.  6.  And  he  it  further  enacted^  That  all  patentees  pmentees, 
and  assignees  of  patents  hereafter  granted,  are  hereby  re-  *^|^-  rcquir- 
quired  to  stamp,  engrave,  or  cause  to  be  stamped  or  en-  articles 
graved,  on  each   article  vended,  or  offered  for  sale,  the  ^^^^^ 
date   of  the  patent ;  and  if  any  person  or  persons,  pa- 
tentees or  assignees,  shall  neglect  to  do  so,  he,  she,  or  Pcnahy  for 
they,  shall  be  liable  to  the  same  penalty,  to  be  recovered  "*^^  ^^  ' 
and  disposed  of  in  the  manner  specified  in  the  foregoing 
fifth  section  of  this  act. 

Approved,  August  29,  1842. 


INDEX. 


A. 

Page 

ABANDONMENT  of  copyright 222 

ABRIDGI\IENT,  whether  a  new  work 190 

definition  of 190,  191 

whether  allowable  ....  265-290 

ACCOUNT,  when  not  to  be  taken,  party  still  entitled  to 

an  injunction     .......         319 

when  ordered  to  be  kept        .         .         .  319  note 

when  it  is  not  a  satisfaction  ....       Jbid. 

always  incident  to  the  injunction,  as  matter 

of  right 319,  327 

but  plaintiff  must  entitle  himself  to  an  injunction     .         327 
principles  on  which  it  should  be  granted  .         .         328 

ACTION,  when  directed  in  equity     .         .         .  316,  317,  319,  320 

ACTION  ON  THE  CASE,   hcs  for    infringement,  at 

common  law  .  306 

given  by  statute,  51  Geo. 

III.  c.  156     .  307 

given  by  statute,  5  and  0 

Vict.  c.  15     .         .  Il,i({, 

ADDITIONS  to  an  old  work.     See  Piracy. 
ALIEN  FRIEND,  first  publishing  in  England,  semble 

entitled  to  copyright        .         .         .  135,136 

may  convey  a  copyright  to  a  British 

publisher 136 

rights  of,  in  England,  when  he  first 
publishes  abroad  .         137,  133 

I 


438 


INDEX. 


Page 


ALIEN  FRIEND,  engravings   designed  by,    not   pro- 
tected in  England    . 
ALMANACS,  belonged  formerly  to  the  king     . 
foundation  of  the  claim 
declared  to  be  jou6/id^'?<ns 

APSLEY,  Lord  Chancellor 

ASSIGNEE  of  copyright,  when  proceeding  in  equity 
ASSIGNMENT  of  copyright,  when  by  parol    . 

in  England,  must  be  in  writing,  if  the 

book  is  printed   .... 
semb/e,  must  be  by  deed 
what  passes  by  parol 
equitable  title  acquijred  by  parol 
in  the  United  States,  must  be  by  deed 
whether  it  carries  the  contingent  term 
the  widow's  or  child- 
ren's interest    . 

AUTHOR,  citizenship  of 

when  an  alien  friend        .... 
meaning  and  force  of  the  word 
contracts  of,  with  publishers     .         .      219  ct 
name  of,  need  not  appear  upon  the  work  . 
when  two  or  more  have  composed  a  work 
who  is  to  be  deemed,  where  different  persons 
have  written  parts         .... 
AUTHORS,  rights  of,  according  to  natural  law 

to  common  law 
petitions  of,  to  parliament 
rights  of,  in  America     .... 


B. 

BANKRUPT,  manuscript  of,  does  not  pass  to  assignees 
otherwise,  as  to  copyright  in  printed  book 
BIBLE*,  a  crown  copy       ...... 

right  to  print,  in  whom  vested 

translation  supposed  to  have  been  bought  by  the 

king 117 

modern  doctrine  as  to  the  translation     .         .  118,  119  no^e 

may  be  printed  by  private  persons,  with  bona  fide  notes  127 


138 

.     40,41 

128 

128 

.  58  note 

316 

219 

220,  221,  223 

226 

221-224 

224,  225 

.       232  ei  seq. 

233 

235 

134 

135 

169  note 

seq.  229  et  seq. 

197,  198 

110,  228  note 

227 

125 

.     44-74 

73 

.     74-82 

218 

231 

.     40,42,117 

128 

INDEX.  439 

Page 
BODLEIAN  LIBRARY  entitled  to  a  copy  of  every  book  204 

"BOOK,"  meaning  of 105,100 

what  it  includes  in  5  and  6  Vict.  c.  45       .  108 

BOOK  OF  COMMON  PRAYER,  printing  of,  belongs 

to  the  queen        .  123  jwte,  125 

BOOKSELLERS,  application  to  parliament  in  1774  .         .         .60,  67 

BRITISH  MUSEUM  entitled  to  a  copy  of  every  book  .         203 

BYRON,  Lord,  his  Cain  refused  protection         ....         150 

Sir  Walter  Scott's  opinion  of      .         .         152 

C. 

CAMBRIDGE  UNIVERSITY,  entitled  to  one  copy  of 

every  book  .  204 

right  to  print  bibles         .         117  note, 

116  nntr,  ]28 

right  to  print  the  statutes         126,  128 

perpetual  copyright  of  200,  201 

CAMDEN,  Lord,  argument  against  literary  property  .    60,  65 

error  of,  concerning  IMilton     ....  62 

character  of  .         .         .         .         .  .60  note 

encounters  with  Lord  Mansfield      .         .         .       Ibid. 
CHARTS.     See  Maps. 

CHESTERFIELD,  Lord,  letters  of 90,  91 

CHILDREN  of  author,  rights  of 25 

CHURCH.     See  Pkekogativk  Copies. 
CITIZENSHIP,  or  residence,  essential  to  protection  of 

copyright  in  United  States 
CLARENDON,  Lord,  MS.  of  his  History 
COLORABLE  ALTERATION.     &e  Piracy. 
COMMON  LAW,  right  of  copy  at    . 

in  the  United  States 
COMPILvVTIONS,  copyright  in 

CONSTITUTION  of  the  United  States,  construction  of 
carried  out  in  the  act  of  1790 

"  COPY,"  meaning  of 

COPYRIGHT,  in  England,  vests  in  subject  or  alien  friend 
i«  United  Stales,  vests  in  citizen  or  resident 
when  invalid,  from  the  character  of  the  book 
on  account  of  immorality 


141 

ct 

scq. 

51 

,  66 

^Gct 

seq. 

74 

177, 

186 

74 

7! 

)-82 

79-81 

26 

135 

ct 

scq. 
141 

147 

ct 

scq. 
149 

440 


INDEX. 


Page 
COPYRIGHT,  when  invalid  on  account  of  seditious  tendency     .         155 

injury   to  private 

reputation     .         .         163 
irreligious  tendency  150 

false  pretences  as 

to  authorship         .         166 

validity  of,  depends  on  originality       .         .       469  et  seq. 

statute  requisites  for,  in  United  States         .  193-198 

in  England         .         .         198-205 

duration  of,  in  England      ....  206-214 

in  the  United  States  .         .         214,  215 

inheritance  of    .         .         .         .         .         .  21G-218 

in  manuscript,  cannot  be  seized  by  creditors         .         218 
does  not  pass  to  assignees  in 

bankruptcy      ....         218 

in  printed  book,  passes  to  assignees    .         .         .         231 

in  manuscript,  whether  it  passes  by  delivery        .         219 

whether  by  parol         .         .  219-222 

equitable  title  to 224,  225 

infringement  of  .         r         .         .         .     236  et  seq. 

COSTS,  when  defendant  should  tender      .....         327 
when  allowed  against  plaintiff      .....         326 
COURTS  OF  JUSTICE,  power  over  the  publication  of 

their  proceedings  .         .         .         129 

CRITICISM.     See  Quotation. 

CROWN  COPIES,  what  are 40 

history  of 39-44 

property  in  ......       Ibid. 

Lord  Mansfield's  view  of    .         .         .         .43  nole 

Lord  Hardwicke's  view  of  .         .         .48  note 


D. 

DEDICATION  to  the  public 222 

to  an  individual        ......  Ibid. 

DE  GREY,  Lord  Chief  Justice,  argument  against  lite- 
rary property         ...  60 

DENMARK,  copyright  in 25  note 

DESIGN,  meaning  of 145 


INDEX. 


441 


DRAMATIC  Compositions,  copyright  in,  not  injured  by 

performance 

whether  property  in,  in- 
cludes sole  right  of  per- 
formance at  common  law 

sole  right  of  performance 
secured  by  statute  in  Eng- 
land 

assignment  of,  in  England 

infringement  of 


Page 
103 

104 


105,  139 

231  ct  seq. 

300 


E. 

ENCYCLOPEDIA,  copyright  in      ...         . 

ENGRAVIjS'GS,  how  protected  in  the  United  States 

in  England 
illustrations  of  a  book 
property  in,  what  it  embraces 
what  is  not  the  subject  of  property  in 
property  in  whom  vested 
assignee  of  .... 

infringement  of    . 

EPISTOLARY  COMPOSITION.     See  Letters. 

EQUITY.     See  Injunction. 

ERSKINE,  Mr.  argument  on  the  meaning  of  "book  '' 
his  view  of  prerogative  copies 

ESSAYS.     See  Feriodical  Publications. 

EVIDENCE.     See  Injunction.     Piracy. 

EXTRACTS.     See  Quotation. 


F. 

FACULTY  OF  ADVOCATES'  LIBRARY, 

entitled  to  a  copy  of  every  book         201 
FOREIGN  PUBLICTIONS.     See  Alien  Friend. 
FRANCE,  copyright  in 25,  note 

H. 

HOLLAND,  copyright  in 2a 

HOUSE  OF  LORDS.     Sec  Reports  of  Judicial  Proceedings. 
I* 


228 

111 

112 

Ibid. 

113, 

114 

111, 

115 

140,   141, 

145 

141 

301 

-305 

lOG, 

note 

124, 

note 

442 


INDEX. 


I. 


Page 


112,   113 


ILLUSTRATIONS,  of  letter  press 

IMITATION.     See  Piracy. 

IMMORAL  PUBLICATIONS  not  subjects  of  copyright  .        149 

INFRINGEMENT.     See  Piracy. 

INJUNCTION,  history  of,  in  cases  of  old  copies         .         .  46-49 

in  cases  of  manuscripts     .         .  49-52 

why  granted     .......         314 

requires  prima  facie  legal  title  .         .         .         315 

but  the  title  need  not  be  established  at  law         .         315 
plaintiff  must  state  his  title        ....         316 

in  the  United  States,  must  have  complied 
with  the  statute  directions      .         .         .         •         315 

equitable  title  sufficient 316 

when  granted  .....         316,  318 

when  refused  .....  317-320 

if  legal  right  doubtful      .....         318 
as  to  the  whole  book  or  what  part  .  320-326 

practice  respecting  .....         325 

account  is  incident  to         ....         .         327 
not  granted  if  injury  is  trifling  .  .         .         326 

or  if  plaintiff  has  long  acquiesced  in  an  invasion  319 

INTENTION.     See  Piracy. 

INTERNATIONAL  COPYRIGHT 

provided  for  in^England  Appendix,  57 

IRRELIGIOUS  PUBLICATIONS,  not  subjects  of  copyright  150  etseq. 

ISSUE,  quantum  damnificatus  ......         319 


J. 
JUDICIAL  COMMITTEE.     See  Privy  Council. 


40,  42,  44 

128 


LATIN  GRAMMAR  formerly  belonged  to  the  king 

now  held  to  be  puhlici  juris 
LECTURES,  oral  and  written,  protected  in  England  by  statute 
except  when  delivered  on  a  foundation  or  endow- 
ment         100,101 

otherwise  upon  the  continent       ....         101 
protection  of,  by  the  common  law 


100 


101 


INDEX. 


443 


Page 

LECTURES,  must  be  substantially  written       ....  101 

but  if  oral,  publicatioa  may  be  prevented       .  102 
in  the  United  States,  come  under  tlic  pro- 
tection of  Stat.  1831,  as  manuscripts         .  103 
LETTERS,  possession  of,  does  not  authorize  publication  bT 
rights  in        .......          •  8'J 

holder  of,  when  entitled  to  publish          .         •  91 

when  he  has  renounced  his  right  91 

in  whom  the  property  resides         ....  92 

private,  whether  entitled  to  protection              .         .  93-96 

no  distinction  between  private  and  literary  95-97 

how  protected  in  United  States          .         .  97,  98 
of  public  officers,  whether  subjects  of  private 

copyright           , 98-100 

of  Pope 90 

Chesterfield 91 

Lady  Perceval 91 

Washington 98,99 

LETTERS  PATENT 28-30 

LIBELLOUS  PUBLICATIONS 

not  subjects  of  copyright      .         .        103  el  seq. 

LIBRARY  COPIES  secured  to  the  British  IMuseum          .         .  203 

the  Bodleian  ...  204 
the  Public  Library  at  Cam- 
bridge ....  Iliid. 
the  Faculty  of  Advocates  .  Il>id. 
Trinity  College,  Dublin  .  IbiJ. 
the  Smithsonian  Institute  .  197 
policy  of  establishing                   .         .           202  note 

LICENSE  TO  PUBLISH  by  parol 219 

when  inferred         .         .         .  225,  226 

LICENSING  ACT  of  1643 32 

Milton's  denunciation  of     .         .                  .  33 

of  1602 35 

expired      .......  30 

revived      .......  38 

finally  expired            .                                    .  Jlnd. 
LIMITATION  OF  ACTIONS, 

in  England,  for  books,  &c.            .  311 


444 


INDEX. 


LIMITATION  OF  ACTIONS, 

in  England  for  dramatic  and  mu- 

sical compositions 

311 

for  sculpture 

312 

in  the  United  States,  in  all  cases 

313 

LITERARY  PROPERTY,  foundation  of  in  natural  law     . 

.       1-25 

origin  of        ...         . 

13 

what  constitutes 

13 

in  different  countries 

25 

history  of,  at  common  law 

26 

belonging  to  the  crown 

39-44 

history  of,  from  and  after  the 

Act  of  Anne 

44-7 

in  America     . 

74-82 

depends  on  the  Fed- 

eral Constitution 

74 

state  of,  before  the  Constitution 

74-81 

subjects  of            ... 

83 

M. 

MAGAZINES.     &e  Periodicals. 

MANSFIELD,  Lord,  his  views  of  crown  copies  .         .  i3  note 

of  the  old  injunctions  48  note,  49 

of  literary  property,  after 

publication  .         .        49, 54-57 

•  of  the  effect  of  the  statute         57,  84,  85 

omission  to  defend  his  judgment  in 

the  lords  .         .         .  .59,  60  note 

encounters  with  Lord  Camden  60,  61  note 

his  views  of  property  in  manuscripts  84-87 

MANUSCRIPTS  common  law  right  in  ...        49-42, 82 

cannot  be  seized  by  creditors  .         .  85,  218 

descend  to  representatives     ....  86 

when  authority  to  publish  implied  .         •  87 

in  United  States  protected  by  statute      .  89,  314 

incorporeal  property  in  ....         216 

inheritable  right  in 217 

do  not  pass  to  assignees  in  bankruptcy  .         218 

whether  the  possession  carries  the  right 
to  print  ......         219 


INDEX. 


445 


MAPS,  how  protected  in  the  Tnitcd  States 
in  England      , 
infringement  of    ......         . 

included  under  "  Books,"  in  Stat.  5  &  G  Vict.  c.  45 
MASSACHUSETTS,  copyright  in,  before  the  federal  con- 
stitution .... 

MASTER  reference  to,  to  ascertain  quantity  of  matter  pirated 
to  ascertain  originality 
to  inspect  both  works 
reference  back  to      . 
MILTON,  on  unlicensed  printing 
Paradise  Lost,  infringed 
notes  on 
sale  of 
MUSIC,  sole  right  of  performance  secured  by  statute 

was  within  the  Stat,  of  Anne  as  a  "  Writing  " 
how  protected  in  the  United  States 
assignment  of  in  England     .... 

infringement  of  ..... 

N. 
NAME  OF  AUTHOR  need  not  appear  on  the  book  . 

usurpation  of  ...  . 

NATURAL  LAW,  rights  of  authors  under       . 
NOTICE  OF  DEFENCE  required  by  5  and  6  Vict.  c.  45 


Page 
111 
115 
305 
115 

77 

324,  325 

325 

Ibid. 

326 

33-35 

47 

Ilnd. 

62  note 

105 

108 

109 

232 

201 


19' 


',  198 

299 

1-25 

309 


ORIGINALITY  essential  to  a  valid  copyright    . 

169 

legal  standard  of      . 

170 

does  not  include  utility     . 

172 

novelty  of  subjoct 

173 

novelty  of  materials 

177 

what  constitutes      .... 

177,  254 

description  of           .... 

177  note 

is  consistent  with  want  of  novelty  in  materials    178-186 
in  translation  .         .         .         .         .         .         .         186 

OXFORD,  University  of,  right  to  print  bibles         117  note,  118  note,  128 
right  to  prim  the  statutes    .  128 


446  INDEX. 


p. 

Page 
PENALTIES,  in  England, 

for  infringing  copyright  of  books  307,  308,  309,  311 

dramatic  and  musical  compositions  311 

prints  and  engravings    .         .         .         312 

sculpture      .....       Ibid. 

in  the  United  States, 

for  infringing  copyright  of  books         .  .         313 

maps,  charts,  musical  com- 
positions, and  prints  .  313,  314 
manuscripts           .         .         .         .         314 
PERIODICAL  PUBLICATIONS, 

how  protected  in  equity,  irrespective  of  copyright  109 

how  protected  under  the  statute     ....       Ibid. 
rights  of  writers  in         .....  110,226 

rights  of  publishers  in  articles  in    .         .         .       227  et  seq. 
PERPETUAL  COPYRIGHT,  objections  to     ...         .  24 

in  what  countries  allowed  25  note 

semble,  formerly  existed 

in  England  .         .         .     27,  66 

PILGRIM'S  PROGRESS 36  note 

PIRACY,  complex  character  of 237,  239 

not  a  question  of  intent 238,  247 

policy  of  the  law  as  to 239,240 

depends  on  injury  caused  ....         240,  241 

by  reprinting  the  whole  work    .         .         .         .         .         241 
part,  in  the  way  of  quotation  or  extract  242 

where  quotation  is  injurious        .         .         .  243,  251,  252 

quantity  immaterial  ......         243,  245 

fair  quotation 245,  246 

in  reviews         ........         246 

intent  of  the  quotation       ..-..•         247 
fair  use  of  previous  works  ....         240,  249 

by  republishing  cases  from  the  Law  Reports      .         .         250 
under  cover  of  extracts     ......         251 

by  imitation      ........         253 

by  colorable  alteration       ......       Ibid. 

when  original  sources  have  not  been  resorted  to         253  ct  scq. 
how  detected    ........         254 


INDEX. 


447 


Page 
PIRACY,  how  detected  by  copyini?  errors         ....         255 

by  substantial  similitude       .  .         250 

to  what  extent  resemblance  must  be  carried  250-259 

in  cases  of  compilations,  &c.     .....         259 

by  undertaking  to  add  to  or  improve  a  work       .  2G 1-205 

by  abridgment 265-290 

review  of  tlic  English  cases         .  905-208 

by  translation  .  .    '    .         .  290-293 

by  usurpation  of  title 293-299 

of  name  of  author         .         .         .         299,  300 
of  dramatic  and  musical  compositions  .         .         300,  301 

by  adapting  music     .......         301 

of  prints  and  engravings    ....  301-301,305 

PLAN,  whether  subject  of  copyright  .  285,  280  note,  180 

PLAY,  license  to  act  not  a  license  to  publish      ....  87,  103 

property  in 103-105 

whether  it  includes  sole  right  of  per- 
formance   101,  139 

amendment  of  the  law  in  this  respect  .        ll'id. 

duration  of  the  sole  right  of  performance         105,  139 
assignee  of,  whether  entitled  to  re- 
presentation      .....  139, 140 

POPE,  letters  of 50,  90 

PRAYER  BOOK,  a  crown  copy 40 

PREROGATIVE  COPIES,  history  of 39,116 

what  are 40,  116 

doctrine  recognized  in  mo- 
dern times         .         .         .  119  note 
PRINTS,     ^e  Engravings. 

PRIVY  COUNCIL.  Judicial  committee  may  authorize 
the  publication  of  books  design- 
edly kept  out  of  piint  ...         209 

PROPERTY,  origin  of 3 

existence  of        ......         .  4 

qualities  of         ......         .         5-9 

PUBLICATION,  not  an  abandonment  of  the  author's  rights  14-16 

PUBLIC  LIBR.\RY,  at  Cambridge,  entitled  to  a  copy 

of  every  book        .         .         204 


448  INDEX. 

Q. 

QUEEN'S  PRINTER.     See  Prerogative  Copies. 
QUOTATION,  how  for  lawful 

quantity  immaterial  . 

fair,  how  far  the  license  extends 

in  reviews  .... 

influence  of  intent 


Page 

242 

243-245 

245,  246,  249 

246 

247,  251  note 


injury  by,  is  the  true  test  247,  249,  250,  251 ,  252 

R. 

REGISTRATION,  mi/je  f/m'CeJ^'^ato,  how  to  be  made    .         .         193 
essential  to  a  perfect  title         .  194-197 

when  the  copyright  is  renewed         .         197 
in  England,  not  essential  to  a  perfect  title    .         198 
how  to  be  made      ....       Ibid. 
affects  the  remedy  .         .         .       Ibid. 

of  periodicals  ....       Ibid. 

of  dramatic  and  musical  compositions       200 
of  prints  and  engravings  .         .         201 

of  sculpture    .....         202 

REMEDY,  at  law 306-314 

in  equity 314-329 

REPORTS  OF  JUDICIAL  PROCEEDINGS. 

in  Un^-Zant/,  formerly  crown  copies  ....     40,41 

in  the  house  of  lords,  practice  respecting  .  .  .  129 
publication  of,  may  be  restrained  ....  Ibid. 
ancient  practice  of  affixing  the  imprimatur  of 

the  judges 130 

how  far  they  become  subjects  of  private  copyright      .         131 
In  America,  no  private  copyright  in  the  opinions 

of  the  supreme  court  of  the  United  States           .         .         132 
REVIEWS.     See  Periodical  Publications. 
RUSSIA,  copyright  in 25 

S. 

SCULPTURE,   entitled  by  statute  to  copyright  in  the 

United  States  115 

protected  in  England      .         .         .         .         .  115 

property  in,  in  whom  vested  .         .         .  14] 


INDEX. 


449 


Page 

SEDITIOUS  PUBLICATIONS  not  subjects  of  copyright        155e^icg. 
SMITHSONIAN  INSTITUTE  entitled  to  a  copy  of  every 

book  entered  for  copyright      197  note 
SOUTHEY,  "  Wat  Tyler"  surreptitiously  published  8S,  137 

SPAIN,  copyright  in         .......         .  25 

SPECTATOR,  copyright  of     • 52 

STAR  CHAMBER,  decrees  of 28,29 

abolished  ......  30 

STATIONERS'  COMPANY,  powers  of         ...         .     27-29 

ancient  entries  ...  31 

ordinance  of  16S1        ...  36 

STATUTES  (in  England)  right  to  print  belongs  to  the  queen       125-128 

origin  of  the  right 125 

how  it  is  now  supported         .....         126 
may  be   printed  by  others  than   the  queen's 

printer,  with  bona  fide  notes        .         .         .         127,  128 
right  to  print,  vested  in  the  universities  and 


the  queen's  patentees 

128 

STORY,  Mr.  Justice,  his  views  of  property  in  letters,  &c.     SS 

89,  96-99 

SWEDEN,  copyright  in 

25 

T. 

TALFOURD,  Serjeant,  exertions  of,  to  extend  the  term  of 

copyright         ...... 

69 

TERM  OF  COPYRIGHT  in  Austria      . 

.  25  note 

Denmark 

.      Ibid. 

England 

Ibid. 

France 

.      Ibid. 

Holland  and  Belgium 

Ibid. 

Norway 

Ibid. 

Prussia 

Ibid. 

Russia 

Ibid. 

Spain 

Ibid. 

Sweden 

.      Ibid. 

The  United  States 

Ibid.  214 

England,  as  to  books 

206-210 

plays  and  music     210-213 
engravings  .       Il'id. 

sculpture      .  Ibid. 


450 


INDEX. 


THOMSON'S  SEASONS,  copyright  of 

TITLE,  usurpation  of      ...         . 
relief  in  equity     .... 
TRANSLATIONS,  how  far  original  works 

when  piratical 

TRINITY  COLLEGE,  Dublin,  entitled  to  a  copy  of  every 
book  .         .         .         .         . 


Page 

54 

293-299 

294 

186-190 

290-293 

204 


U. 
UNIVERSITIES,  perpetual  copyright  of         .         .         .  67,  68 

UNIVERSITY  AND  COLLEGIATE  COPYRIGHT, 

in  England,  in  books,  is  a  perpetuity        200,  201 

W. 

WASHINGTON,  manuscripts  of 87-89 

WIDOW  of  author,  rights  of 25 

"  WRITING  "  music  within  the  term 108 


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